Legal Aspects of Website Design
From Entrepedia: The Entrepreneurship Wiki
(Unless otherwise specified, this content is based on information provided by Alison M. Ross of Pinsent Masons. More information on IP law and guidance on website design and e-commerce can be found at Pinsent Masons' free online resource Outlaw.com)
Intellectual Property (IP) law does not protect an idea alone and the idea must be reduced to a physical object or expression of the idea. IP law protects new and novel things, although "novelty" is defined differently in different IP legislation. IP law creates a temporary monopoly for the owner of the IP rights which can then be exploited. We will see how these basic tenets are dealt with in each of the four cornerstone areas of IP law: design rights, patents, trade marks, and copyright.
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Design rights
Design Rights are governed by the Registered Designs Act 1949, the Copyright, Designs and Patents Act 1988, and the Registered Designs Regulations 2001. Design rights are the protection of the shape or configuration affecting the look or design of articles which are commercially produced. The UK has two forms of design rights and there is some degree of overlap between the two. Registered design rights protect the look/appearance of a product if the product is novel and has its own character. The registered design right can arise from the lines, contours, colours, shapes, textures, or materials of the product or its decoration.
A design that is purely functional cannot be registered as a registered design right. The registered design right affords stronger protection than the unregistered design right and gives the owner exclusive rights to the design for a period of up to 25 years, but an application for registration must be made through the Patent Office. The unregistered design right gives weaker protection but this protection arises automatically without the need for registration. The design right protects the design of the shape of an item which is original, and purely functional items can qualify for design rights, ie shapes of bottles. However, the design right does not include two dimensional designs. The unregistered design right is enforceable for the lesser period of 15 years from when the design was set out in a design document or 10 years from when articles made to the design were first offered for sale or hire.
Domain Names
The first step most developers take in developing a website is the decision on a domain name, which must be in place before the website can be launched.
As you will be aware, there are various sites through which the availability of domain names can be checked. However, even if the desired domain name has already been registered by someone else, it may be possible to purchase it, particularly if they are not using it. The consensus is that the trade in domain names has matured significantly since the days of the dot.com boom, when the domain name business.com topped the transfer list at a cost of $7.5million. In the current market, more sensible prices can be negotiated.
There is no intellectual property right in domain names generally, so the main concern in choosing a domain name is the risk of trade mark infringement. By registering a domain name which is the same as or similar to an existing trade mark, there is a danger that the domain name holder could use the trade mark of another in relation to the same goods and services. The global nature of the internet increases the risk of infringing another's mark.
To be safe then, when domain names are being considered, businesses should also perform a trade mark search, to establish whether there is any risk of infringement of another's trade mark. A basic search can be performed at some trade mark registry sites such as the UK's Trade Mark Registry site. However, depending on your budget, you should consider consulting specialist trade mark agents who will be able to perform more comprehensive searches, not just on the name but also on any logo you may be adopting that could be suitable for trade mark protection.
It is also worth entering the desired name into a search engine such as Google. This gives a basic but free check of whether anyone else is trading under the same brand or if the brand carries connotations, perhaps in other languages, that you had not anticipated.
Development and Ownership of IP Rights in the Website
Once the domain name has been obtained, the next stage is either to develop the site personally or to find someone else to develop the site. If instructing external developers, the most important rule is to have an agreement in place before work begins. This should be reasonable to both sides, but protect your interests as much as possible. The agreement at minimum should include a full and detailed specification of the work to be done, the terms of payment, details of who will own what, the timescales for delivery of the work, and in what circumstances the agreement can be terminated by either side.
A website and its individual elements will be protected by copyright and possibly other forms of intellectual property. As discussed in detail above, the text, design, graphics and layout of your website and any music, broadcasts, software and images on your website will usually be protected by copyright.
When creating your website, you need to consider whether you are the owner of any works that you wish to include in the website. Do you have the rights to include the graphics you want to include? If you commissioned photography for a brochure, for instance, you need to check that your agreement with the photographer or agency allows you also to use that photography on-line. So you must either be the owner or have a licence from the copyright owner of the work in question to use and amend the work on your website.
Employees
If your employees are creating your website then copyright automatically vests in you as the employer in the absence of any agreement to the contrary. But this is not the case if you are commissioning external web developers to create your website or graphic designers and photographers to contribute parts of it. In the absence of agreement, a person commissioned to contribute to the site will own the copyright in the works they create.
Third Party's IP Rights
There will be other rights. Your brand may be protected by a trade mark; but if your developers were involved in designing your brand logo, they may have copyright in it and that could restrict how you use it. Your database of users or of information that is accessible on your site may attract database rights and you need to be clear about who owns these rights.
If you use an external developer and the developer refuses to give you copyright in the site, ensure that you have a perpetual licence to and to permit others to use, copy and amend the website which should be irrevocable upon termination. You may also want to restrict the developer from using any of the copyright or ideas contained within your site to design a competitor's site.
Aside from the issue of IP rights created in developing the website, there may be IP rights from other sources which is used. Given this, you will wish to ensure that the developer has the right to use all the IP rights arising from the services (and will wish to be indemnified against any action for infringement of IP rights). Use of images is an obvious example; but also fonts and symbols or graphics.
Disabled Access
If your business has a website, it should be accessible to the disabled. There are ethical and commercial justifications for this, but there is also a legal reason: if your site does not meet certain design standards, it is feasible that you could be sued for discrimination.
To date, there has been no such legal action in the UK. However, it is widely anticipated that a test case against a non-compliant site will come before the UK courts in the near future. Clearly, this is a battle which any business will want to avoid.
What is accessibility?
The accessibility of websites covers much more than just disabled access. It’s about giving people unhindered access to a website from various devices, such as web-enabled televisions, mobile phones and handheld computers. It’s also about giving access to users who have different screen sizes, browser types and settings, or those who do not have plug-ins such as Flash. The legal obligation does not concern accessibility generally; instead, it concentrates on providing access to the disabled.
What is disabled access?
For those with disabilities such as sensory or mobility problems, the internet can be a mixed blessing. Home shopping, for example, can be invaluable to those for whom busy streets present a difficult challenge. However, in much the same way as a building may be problematic to the physically disabled, a website may also present barriers to access. For example, a visually impaired internet user can use a screen reader to translate the contents of web pages for speech synthesisers or Braille displays. The user will struggle to understand web pages if, for example, images are displayed on the page without a text alternative (which can be provided in HTML by an ALT tag).
This example is commonly cited when discussing disabled access. Bear in mind that visual impairment describes a wide range of problems including those who are registered blind, those who are colour blind or those who suffer from tunnel vision or cataracts. There are also those with motor disabilities, cognitive disabilities and other impairments. Barriers to access by individuals suffering any such disabilities can be interpreted as discrimination.
The law on disabled access
Accessibility is governed in the UK by the Disability Discrimination Act of 1995 . The Act states that it is unlawful for “a provider of services” to discriminate against a disabled person in failing to comply with its provisions:
- where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect.
There was some ambiguity because the wording of the Act did not specifically mention on-line services - although the consensus has long been that it could be applied to websites. The ambiguity was removed by the publication in February 2002 of a Code of Practice which is based on the Act. The Code specifically refers to the application of the Act to on-line services.
In explaining the services which a business should make accessible to people with hearing or visual disabilities, the Code cites “accessible websites” among its examples. Further, in describing services affected by the Act, the Code gives the following example: “An airline company provides a flight reservation and booking service to the public on its website. This is a provision of a service and is subject to the Act.”
What standard is required?
Nobody knows for certain what level of disabled access is required of UK websites. However, there is consensus that the best practice is to comply at least with a minimum accessibility level defined by the World Wide Web Consortium, or W3C. This standards-setting body was founded in 1994 by Tim Berners-Lee, the man credited with inventing the web.
The W3C provides three “conformance levels,” known as Priority 1, 2 and 3 (they are also known as Levels A, AA and AAA). According to the W3C, a website must satisfy Priority 1, otherwise some users will find it impossible to access the site. The W3C considers that a website should satisfy Priority 2, otherwise some users will find it difficult to access the site. Finally, a site may satisfy Priority 3, otherwise some users will find it somewhat difficult to access the site. For the guidelines and other information, see the Getting Started pages on the W3 website.
To be safe, your site should satisfy Priority 1 (or Level A). A simple check of your own site can be made by entering your site’s address in the search tool at Cast.org. If you are a web developer, accessibility is something you should discuss with your clients, who may want designs which would fail to meet the minimum W3C standard. If clients insist on such designs, you should address this in the development contract to avoid liability for failure to comply with accessibility legislation.
Hosting
Most businesses do not host their own websites. Sometimes the web developer will host the site; but increasingly specialist hosts, offering so-called collocation facilities, will be used. A hosting agreement will be required either way, although there is likely to be less room for negotiation with large companies that offer hosting as a low-cost commodity service. The hosting agreement should cover three main issues: service levels, adding content, and maintenance of the website.
Hosts should guarantee a certain service level for your site. Typically this is expressed as being the percentage of time which the server on which the site is hosted will be available for access via the internet and allowances should be made for any period of planned downtime or for maintenance of the server which should be excluded. The availability percentage is likely to be in the region of 98% to 99.999%. Ideally, you will want a service level agreement that contains a provision for a rebate of part of the fees paid, and the right to terminate the agreement, if the service levels are not achieved.
The content of the website is unlikely to remain fixed, and the frequency with which websites need to be updated is likely to vary from site to site. The parties will need to agree a procedure to set out how content is to be added to or amended on the website and by whom. The parties should set out what they intend to do to maintain the site. This will include issues such as the nature of support, maintenance, and the response times expected.
Linking
Usually, linking from one site to another website will not upset anyone because most sites are pleased to receive any new traffic they might not otherwise get. However, there are potential problems with links. Other website owners may object if there is a danger of users becoming confused about whose material they are looking at, since it is not always clear to the user when he has left one site and entered another.
There is also the potential to infringe trade marks and copyrights if a third party's logo on a website accompanies a link to that third party site and has been used without permission. There can also be a danger of liability for content on other websites. If there is defamatory or illegal material on another website, the party creating the link needs to think about its liability for that material (the issue of defamation is considered further below).
The safest approach to linking is to obtain the advance permission of the owner of each other site to which you intend to link. This can be done by e-mail or by entering into a more formal linking agreement, which could specify, for example, whether the link is to be one-way or reciprocal, and provisions for any payment for the link (which becomes relevant with prominent links on busy or highly targeted sites). There are no laws on linking as such, so if it is impractical to obtain permission to link to another site, here are some sensible steps to follow:
- Only link to another site where you think the owner would be either pleased or indifferent to the existence of the link.
- If the owner of the other site does object to the link, it should be removed immediately.
- To reduce the danger of IP infringement, it should be made clear to the user that when they click on the link, they are being directed to a separate site. This can be done in the wording around the link – for example, instead of “Click here for more information,” you could say, “For more information, see the website of XYZ”.
- Do not use third party logos to accompany your links without permission – because this could be copyright and trade mark infringement.
- Deep links are links to any page on another site other than its home page. Some get upset by deep links because they argue that their home page carries most of their branding and advertising. Exercise caution if using deep links – again, few are likely to be upset, but to minimise the risk of a dispute, avoid putting too many deep links to a single site.
- To reduce the danger of liability for third party content, wording could be placed near to the link such as: "We are not responsible for the content of external internet sites.".
- If your site is hosted by another party, your agreement with the host should clarify that links should not be added by the developer without consultation – to give you the opportunity to seek permission from the other site.
Framing
Framing allows a website to be displayed in a smaller window on another website. When a site is framed within another, its URL or domain name is not displayed. Instead, the URL from the originally accessed site is visible. The window containing the framed site is bordered by as much as the originally accessed site’s branding as it chooses to display. Furthermore, users are not able to bookmark the target site, as the bookmark will save the URL of the framing site. One concern is the loss or dilution of advertising potential of a site - due to the frame imposed on a target site, the advertising content may compete with or be contrary to the advertising in the target site. A framed site arguably alters the appearance of the content and creates the impression that its owner endorses or voluntarily chooses to associate with the framer.
Framing may incur liability for breach of copyright or trade mark infringement if the impression is given that the material is that of the site owner and is done without the third party’s consent. Accordingly, the rule of thumb is that you should not frame another site without permission from that site's permission.
Data Protection
Once the website has been launched and is running, the website will need to be operated in a way so as to comply with the Data Protection Act 1998 (the "DPA") and related legislation. Failure to comply can have serious consequences for the website owner. It can result in enforcement action by the Information Commissioner, ultimately leading to prosecution, fines and even personal liability for company directors. Given this, the issue of data protection needs to be taken seriously and well managed. The following are some key questions to help you assess whether your site complies with the DPA:
- Does the site owner collect personal data as a data controller? Personal data is information from which an individual's identity can be ascertained, i.e. name, address, phone number, email address. A website owner will generally be the data controller for the personal data collected on a site and will therefore be required to register with the Information Commissioner's Office and to comply with the Act.
- What are the grounds for processing the data? Under the first data protection principle, a data controller must justify its processing of personal data under certain conditions. Often the data subjects' consent will be needed before any processing can be undertaken.
- Does the website have data protection notices and a privacy policy? The DPA requires data controllers to give individuals certain information. This should include a description of the details of the data controller, the purposes for which personal data will be kept and processed, the length of time the data will be stored and the details of any recipients of the personal data. Such information should be prominent on the website. An appropriately worded notice can enable on-line businesses to build a valuable contacts database, and market to their visitors.
- Is the website secure? Security is important for the website generally but is also specifically important for compliance with the DPA. Under the DPA, data controllers must put in place adequate security measures to safeguard personal data which they are processing from destruction, loss, unauthorised access or disclosure. This would include, for example, security against any hacking on any website which collects visitors' e-mail addresses. In addition, data controllers must put in place processing contracts with their 'data processors' (a third party appointed by the data controller to access personal data on its behalf). These processing contracts must be in writing and must set out what the data processor may or may not do with the personal data, including what security measures should be taken to safeguard the data.
- Is personal data to be transferred overseas? If personal data is disclosed or made available to a person overseas, that is considered a transfer for the purposes of the eighth data protection principle. In the context of the internet, if the information is placed on a website without specific consent from the individual, this would be in breach of the Act since the data can be accessed in countries with less stringent data protection laws.
This list is not intended to be exhaustive. Instead, it is intended to highlight the importance of considering data protection issues when setting up and running a website. Where new websites are set up, it is important to deal with data protection compliance issues at any early stage to ensure that the personal data which is collected can be validly used as the website owner envisages.
On-line Contract Formation
Many businesses will want to use their sites in order to buy and sell products on‑line. Given this, one key issue is the way in which they will enter into contracts with their customers over the internet. Contracting on-line is essentially the same as contracting off-line. The same requirements have to be fulfilled in order to ensure that the contract is legally binding. These requirements are fairly basic: there must be an agreed set of terms and both parties must intend to enter into a legally binding agreement. Under English law, but not under Scots law, there must also be some form of consideration.
Conclusion
In establishing a business that is built on innovation or involves creative aspects, you have to consider from the outset exactly what that innovation encompasses, and consider the development, protection, and exploitation of those innovations thoroughly at the beginning. An IP strategy forms the foundation on which your business can develop and the IPR protections must be suitable to your innovations, and be robust enough to protect your innovations while also offering the business flexibility in order to expand and develop. IP protection should always be in the back of your mind when running a business centred on innovations – it certainly pays to be forward-thinking and prepared, gaining protection along the way rather than finding yourself in an infringement situation with very little to substantiate your claims. In the long term, if it comes to selling your business, potential buyers will audit the IP protection in place and will see the value in a strong and well-managed portfolio.
Depending on the nature of the business to be conducted through the website, there are certain practical factors which must be considered to ensure that the business complies with relevant e-commerce, data protection and contract laws. Take a moment to see how compliant your website is The guidance above highlights and gives an introduction to some of the issues which need to be considered when a business wishes to set up and run a website to conduct business. The factors to be considered are wide ranging and are not always obvious, and a business needs to plan carefully at the outset to ensure that its site avoids legal obstacles.
Further Information
- Further information on IP law and guidance on website design and e-commerce can be found at Pinsent Masons' free online resource Outlaw.com.
- The UK Patent Office publishes guidance on patents, trade marks, designs and copyright, and can answer queries relating to the registration procedures.
- The Intellectual Property Office, a government website maintained by the DTI, contains general information about IP law.
- Detailed trade mark advice and details for trade mark agents can be obtained from the Institute of Trade Mark Attorneys.
- Further information on data protection and privacy can be obtained from the Information Commissioner's Office.
