Legal Essentials

Got Your Business Online? You Could Lose it at Any Minute!

Take Steps to Protect Your Online Business NOW

Would you like to feel confident that you have your business profits protected without having to spend a fortune on legal advice, or worse still, relying on your friends or website designer to tell you whether or not you’ve got it right? Now you can! Not only that, but what if the advice was actually relevant to you in your industry, answering the questions that are important to you?

Did you know that if you don’t take steps to protect your online business, you could lose it at any moment?

Sue and Toni-Louise ran into legal trouble with their brand name

 

What if there was some place that you could find a checklist of all the “must have” legal information  you need to know about when starting your business online, and then all the “nice to haves” and the “optional” and then the “who on earth told you you’d have to have that?” Would you like to download the basic legal forms you need and know that they are current and have actually been written by a lawyer with your kind of business in mind?

Well, this is what we are doing.

Private legal practices are looking for clients who are going to spend tens of thousands of dollars a year with them. They are not really interested in catering for small operators who have equally important concerns, but less need for extensive legal advice.

Here at Law For Your Website we’ve discovered that, shock horror, lawyers are generally not your favourite people and you don’t like to give them all your hard earned cash just to find out that what you thought in the first place is actually right!

Would you rather get the short answer?

We know that a lot of small business people feel intimidated by lawyers just because you are not sure what questions to ask, how much its going to cost, or what the answer means when you get one!

And guess what, you don’t have to be in trouble to ask a question that might be bothering you! Imagine being able to check out the answer to a hypothetical question that concerns you and get the peace of mind you need without having to take the time or spend the money to chase a lawyer for the answer.  How cool would that be!

We have put together the Legal Essentials Program to guide you through the process of getting your online business legally compliant and protected. Whether you’re just starting out or doing a legal review, we’ve included the seven legal essentials, steps to take, hints, tips and resources to support you.

ClockIn just a short amount of time each week you can learn all you need to know to decide to run with what you’ve got or get legal advice to deal with it. And the difference is this process gives you all the information you need to speak to your lawyer from an informed perspective, so that you can get straight answers!

This information has been put together by Jeanette Jifkins LLB, LLM, GD LP, an experienced lawyer who understands internet marketing and works closely with people in the industry to answer your frequently asked questions, and the questions you should be asking!

There are seven basic areas of law to be covered when creating a website. If you are looking for a specific area of law, simply click on the appropriate step below. Otherwise, continue reading after this list for all the detail and links to resources you will need.

The Seven Legal Essentials are:

  1. How to make sure you can use the domain name you want, without getting unwanted demands to hand it over in the future
  2. Find out what you can and can’t do with your content and other people’s content and protecting your intellectual property
  3. Don’t say things about your products or services that you’ll regret
  4. How to protect yourself and your business from people commenting on your website who say things about other people or companies that you will regret
  5. Why is so important to make your website easy to use for people with disabilities
  6. Why privacy obligations are so important
  7. Why terms of use for your website make a difference in protecting your business

 

Step one – getting your domain name

Choosing a domain name

When choosing a domain name pick something related to your business, not someone else’s! If you want to run a successful business you want to avoid disputes. They just cost money and take time that you could put to better use growing your business. So, before you pick a tricky play-on-words that sounds like your main competitor, think again! “Crazy Ron” spent a lot of money on lawyers (and rebranding stores and websites) after trying to copy “Crazy John”.

When you have a list of ideas for domain names, check for registered trade marks in the same line of business BEFORE you check for available domain names.

Let’s take “Fernwood” for example. Most people have heard of the female only chain of gyms and fitness centre’s using the brand “Fernwood”. It is a registered trade mark, but it is registered in relation to health and fitness and weight loss. So, if your business is in furniture for example, then you’re unlikely to run into trouble registering “fernwoodfurniture.com.au” as a domain name.  Just out of interest, Fosters have also registered the trade mark “fernwood” in relation to alcoholic beverages. So you can see that a trade mark for one thing does not cover everything.

You can check for registered trade marks at IP Australiahttp://pericles.ipaustralia.gov.au/atmoss/falcon.application_start

  1. Just click “Enter as Guest” and chose one or two words (eg: fern or fernwood ) that are in the domain name that you are thinking about registering. Just because there is a registered trade mark does not mean that it is in the same business as you
  2. If you do find a trade mark with your words in it, then read down to Class/es in the trade mark listing and click on any numbers (between 1 – 45) that are listed there
  3. When you click on a number, it will show all goods and services associated with that registered trade mark eg Class 41 health and fitness clubs
  4. If the trade mark is already registered for goods or services that sound like your business, look for a new name or get specific legal advice
  5. You should also check the Status (directly under Class/es) of the listing, just to make sure it is current. It should read “registered” or “registered/protected” for a registered trade mark

Having a registered trade mark does not automatically give a company rights to a domain name containing that trade mark, but a court might just make an order that it be handed over if it can be shown that by registering that domain name and using it you are breaching trade mark rights.

Registered TradeMark symbol

If you want to find out what can happen in Court lets look at the Queensland Gold Coast. The Mantra Group managed two residential high rise buildings called “Circle on Cavill” and about a third of the properties in those residential towers. It also registered the trade mark.

Another company (Tailly) manages about 39 apartments in the towers and used “Circle on Cavill” and various different spellings of those words to register a bunch of domains names. The court decided that Tailly breached Mantra’s trade mark and ordered the transfer of the most of the domain names.

Some of the argument before the court was whether or not Tailly was using “Circle on Cavill” in good faith to describe the geographic location of the apartments they were leasing. In that case, the Court decided there was no good faith, but it does goes to show that the use of a trade mark in the domain name alone was not automatically protected.  

Where to get your .au domain name

www.GoDaddy.com is the largest domain name registrant in the world, but it does not have the licence to allocate any top level .au domain names like .com.au or .org.au. To get an Australian domain, you need an Australian register. We use www.crazydomains.com.au but there are lots more to choose from, just do a search online and make sure they are auDA (.au Domain Administration) accredited.

What information you need to have to get a .au domain name

To get a .com.au domain name you need an ABN (Australian Business Number) and a “close and substantial” connection between the domain name and your business. You can apply for an ABN at www.abr.gov.au. To apply for an ABN you will need to have this information:

  • legal name
  • postal address
  • business address
  • business name/trading name
  • contact details—for your business and the parties able to make changes to your ABR details
  • applicant type for example: sole trader, partnership, trust, company
  • Australian company number (ACN) or Australian Registered Body Number (ARBN) – if applicable
  • the name of the person responsible for dealing with the Australian Tax Office on behalf of the applicant
  • the name of the trustee or trustees (if applicable)
  • email address—you must provide this if your GST turnover is $20 million or more, or if you wish to deal electronically
  • the main business or type of industry being carried on

You may also need to provide details like a tax file number (TFN) and bank account details.


Step two – protecting your intellectual property

Once you put an idea out there, there is no getting it back. But remember, there really aren’t many people out there who have the passion or enthusiasm to take your idea and run with it. So, you can be afraid to share anything with anyone, or you can take a risk and aim to dominate the market before anyone else.

Copyright SymbolThere is no copyright in ideas. If you have a great idea and want to run it by someone without them stealing it, you need a confidentiality and non-circumvention agreement. These kinds of agreement may still be hard to enforce if you are in one country and the other person is in another country, so be aware that they are not full-proof. Most people are honest and if you ask them to enter into an agreement like this will usually comply with it.

Plagiarism and copyright are two very different things. Plagiarism is adopting someone else’s idea as your own and not giving credit, which is more of a problem in academic settings than business settings, and copyright is a bundle of legally enforceable rights that occur free and automatically upon the creation of an artistic, literary, dramatic, musical and other protected works.

The easiest way to make sure that you are not going to get in trouble for copying content on your website is to make sure you either: Fountain Pen and writing

1.     Write it all yourself
2.     Pay someone to write it all for you, making sure that your contract to get them to do the work includes a clause that says you own the exclusive copyright in whatever they write for you and that it is all original and does not infringe any other person’s rights
3.     Get written permission from the writer (eg: a supplier) to use what they have written
on your website

Any photos or videos you use on your website will also be subject to copyright by someone. Make sure that someone is you, or you have the necessary permissions to use the work. Keep a record of permissions, just in case you get any letters in the mail claiming that you need to pay money for having used images or videos without permission. There are all sorts of different ways to get permission, including speaking to the creator directly, or using a licensing authority like APRA|AMCOS that provide licenses for the broadcasting of music and videos.


Step three – making sure you don’t say things about your products or services that you will regret

We’re all familiar with advertising. The BEST this and the GREATEST that. But when do you overstep the mark?  There are no black and white answers to this question, but a great guide is to sit back and read your product or service descriptions as if you were a customer. If anything you say is confusing to a potential customer, or is likely to make that customer think they are getting more than you are giving them, then don’t say it!

Orange fruitYou’ve also got to be able to back up any claims you make. The Ribena blackcurrent fruit drink company advertised for years that Ribena contained four times the vitamin C of orange juice. Right up until a schoolgirl in New Zealand did a classroom science experiment and proved them wrong! From that point forward the government consumer protection authorities became involved and Ribena advertising changed.

The Australian Consumer Law sets out a collection of “consumer guarantees” that you need to meet if you are going to sell products or services in Australia. The government has put out a great, easy to understand booklet called Consumer guarantees – a guide for consumers that you can get here . Every business owner should read it too!

Your key consumer guarantees for goods are:

  • you have the right to sell the goods free and clear
  • the goods are of an acceptable quality
  • the goods are fit for the purpose for which they are sold
  • the goods match the description/ photograph/ sample or demo model
  • any written warranties or guarantees will be met

Your key consumer guarantees for services are:

  • that you provide services with due care and skill
  • that you provide services that fit the purpose for which they were purchased (eg: if you are doing bookkeeping, you don’t try and sell supplements as part of that bookkeeping service)
  • that you provide the services within a reasonable time

The key to compliance is to only make promises you know you can meet!

 

Step four – be careful what people say on your website

It is great to get involvement from your customers on your website and with some industries the community interaction helps to generate sales. But what happens if someone starts saying nasty things on your website?

Man looking surprisedThere is a fine line between creating an environment where people can express themselves freely, and being seen to be encouraging people to post negative comments. Up until June 2011 the law in the US was in favour of making website owners responsible for the comments posted on their websites, then the courts in New York started to take a more moderate approach, much to the relief of many businesses.

The thing is, when inviting contributions to your website, you need to decide whether or not to moderate and who is responsible for the comments made. If the comments are negative, there may be legal consequences. When talking about people, this is called defamation. You can also defame small not-for-profit organizations, but not companies. When it comes to companies, what you say might be considered negligent, or misleading and deceptive.

If you are going to moderate, you need to make sure contributors know that you reserve the right to remove or edit their comments, and even terminate their ability to contribute if they continue to post comments that don’t meet with your website policies.

The other extreme is to have one of those websites that allow people to tell on companies that provide bad products or services and make sure your terms are really, really clear about the writer being responsible for their own comments. Keep in mind that even if you do this you could be involved in court action to identify the person who made the comment. There are a few common legal remedies available to savvy lawyers to extract information from website owners and forum hosts.

Keep in mind as well that a closed, member’s only forum might be limited to member involvement, but it is still public and published as far as comments are concerned and can still attract legal action.

Step five – make your website easy to use for people with disabilities

Huh? Unless you have challenges with your vision or mobility, it probably never occurred to you that using a website or a mouse might be difficult. For approximately 16% of the World’s internet using population, it is hard to either read a website or use a mouse to access the website.

Can you afford to have a 16% increase in traffic to your website?

Governments in Europe and the western World are currently going through the process of ensuring that all government websites are accessible. This means that they can easily be read using e-reader software (it reads the text from a webpage out loud to the user) and keystroke navigation, or alternate navigation techniques.

This project has been ongoing for the last few years and once complete will probably flow over into pressure on business to ensure accessibility. There have already been court cases by individuals and disability organizations successfully claiming remedies for discrimination, so be ahead of the game and avoid ending up in court!

The World Wide Web Consortium has information on involving users for better accessibility and http://www.w3.org/WAI/users/involving and Wikipedia is worth reading for the essential components of web accessibility http://en.wikipedia.org/wiki/Web_accessibility. There are even organisations like www.webAIM.org that provide certification for website accessibility.

 

Step six – Why knowing your privacy obligations is so important

Privacy policies! You see links to them everywhere on the internet, but have you ever read one?  You can read the Law For Your Website privacy policy here, which you can also copy once, for free, if you include a backlink. You can also have a look at a US version at www.freenetlaw.com.

Australia is currently undergoing an extensive review of the national privacy legislation and it is highly likely that the new version will include provisions dealing specifically with the collection of personal information online. So if you have a subscription form or name capture anywhere on your website, you will need to have a privacy policy that complies.

Personal information is any information that can identify a person. Email addresses may or may not be considered personal information, depending on the circumstances. However, if you are collecting email addresses to send out marketing information, you’ve got to comply with anti-spam laws as well as privacy laws.

If you want to write your own privacy policy, you can have a go by answering the following questions:

  • What information do we collect about you?
  • What do we do with the information that we collect?
  • How can you check the information we have about you?
  • How can you make changes or update to the information that we have about you?
  • Who can you contact if you are worried about the way we have used the information that we have collected?

Some additional things that may be included in a privacy policy are:

  • What information we collect using cookies and what we do with that information.
  • Protection of financial information.
  • Information about young people under the ages of 18 and under the age of 13.

Cookies aren’t necessarily personal information, but privacy laws around the world are being expanded to include all sorts of electronic tracking codes that have the ability to change the way you view webpages based upon records of the websites that you have visited in the past.

Some of the proposed future changes to privacy law include the requirement that companies sending information to call centres overseas will be required to include in their privacy policies which countries they are sending information to,  specifically what information is being sent, and what security measures are in place to protect it.


Step seven – Why terms of use for your website make a difference in protecting your business

How do you think you would play chess if there were no rules? Would you have naturally assumed that a horse had to move in two directions every time it moved? Probably not.

When people use your website, you can either set the rules yourself, or let the user make them up. Which do you think is going to make it easier to run your business?

There is no “one” set of rules for using websites. Websites are all different and people will use them differently. In some countries, what you have on your website, or what you are selling through your website, might be illegal. If so, you want to make sure you have some rules in place to say that people in those countries should not visit your website. This doesn’t mean that you have to research the laws of every country, it just means that when you make the rules, you make sure you are not liable for what people in those countries do with your website.

The rules might be called different things – terms of use, terms and conditions, legals, disclaimer, policies etc. There isn’t one right title, but it is worth fitting in with the convention used in the country that will have your largest market. So in the UK for example, your tab is more likely to be called “disclaimer” than “terms of use”. You can read the Law For Your Website terms of use here, which you can also copy once, for free, if you include a backlink. You can also have a look at a US version at www.freenetlaw.com.

Generally speaking your “terms of use” will cover the basics of using your website like making sure you are not liable for links from your website, making sure that you are not liable if access to your website is cut by a third party (eg: a hosting company that goes out of business!), covering liability for an comments displayed, determining which country has jurisdiction over use and so on.

Websites can also have terms and conditions that govern how members use the website, or how different classes of members use it, how advertisers use the website, how payments are made, how products are delivered and so on. If you have a look at ebay, you will find that there are pages and pages of rules (called policies) about how ebay is used.

The important thing in getting terms of use for your website is being clear on who will use your website and how they will use it and creating rules for all of those scenarios.


What about the rest?

We’ve just given you the seven legal essentials for doing business online but we understand that there is other stuff you probably want to know, things like:

  having customers in other countries
  understanding and using different business structures likes trusts and companies
  some helpful hints for setting up shopping carts and merchant accounts
  using auto-responders and dealing with spam
  protecting your online reputation
  avoiding the “Google bomb”
  resolving disputes with customers, suppliers or competitors
  buying and selling websites
  responding to demands to hand over your website

The easy way to do it

If all of the above seems just too hard to work out on your own, there is an easier way. For just $79 per month you get access to our Legal Essentials program to guide you through. Every week you get a bite size piece of legal information essential to your online business.  (You can be the smarty pants when your friends have questions about their websites!)

Plus you get access to a growing library of downloadable legal forms just for members of the Legal Essentials Program. Each month a larger part of the Members area becomes available to you, including all the information you’ve already received by email. Imagine being able to check out the answers to questions that concern you and get the peace of mind you need without having to take the time or spend the money to chase a lawyer for the answer.  How cool would that be?

And guess what? You don’t have to be in trouble to ask a question that might be bothering you! Members can also send in emails so that we can answer your questions, make suggestions, and point you in the right direction. To find out more about what the mentoring program covers, please click here.

All the best in your online business!

While we are happy to receive email queries, we don’t guarantee that we will get back to you immediately. However if you decide to join our mentoring program you do receive a priority email address that gets attention before any others.

Your time is money. In a small business all the time you spend on activities that don’t earn you an income is lost time, so you really don’t want to be spending hours explaining to a lawyer what your business involves and what it’s all about then waiting weeks for them to come back to you with a big bill telling you that this or that may apply to you. And you probably don’t want a long winded outburst which explains everything except the answer you were looking for! The answer might be in there somewhere, but do you have the time to decipher what it is from amongst all the other stuff?

We understand internet marketing and online business and we’ve probably heard of the software you are using and have a good idea of what you want to achieve. So if you do want specific legal advice tailored to your business, we offer an affordable priority service to Members too.

Kind regards

Jeanette Jifkins

Register Here for the Legal Essentials Program