When creating a website for your business, there will always be legal considerations that should form part of your website planning and design. Starting a new business can be an exciting time and sometimes a little overwhelming particularly if you are not professionally advised from the outset.This doesn’t need to be costly and can avoid disputes or pain in the future.
To ensure every success in the development of your online presence, itss important to have at least a privacy policy, website terms and conditions of use and service / sale specific terms and conditions depending on whether your business sells goods or provides services.
Being aware of protecting intellectual property of your businessand how the Australian Consumer Law works with respect to your business, are also really important considerations.
The Basics
While it may seem straight forward, basics to include on your business website are:
- Full company name
- Company registration number and ABN
- What product or service your offer
- Geographic address of your business
- E-mail address for “contact us”
- Contact phone number
- Operating hours of the business
Protect your domain
When setting up your business presence online, it’s a good idea to start by researching possible trading names. Your major considerations should be:
- The name is not already taken: Check that the domain and company name are both available and not already registered.
- The name you choose is memorable, short, easy to remember and not easily misspelled.
- Make sure your name is not associated with a negatively viewed business or industry, like gambling or inappropriate material.
- Cybersquatting (registering a domain name with a bad faith intent to profit from another’s trademark or goodwill) is not permitted.
- Consider registering your business’ name on popular social media sites such at Twitter, Facebook, LinkedIn and Instagram. Even if you aren’t planning on using these social channels to promote your business initially, you may find that they will become useful tools to market your business in the future.
- Apply for trademark protection (in Australia and perhaps overseas) for your domain once it’s been registered. Doing so strengthens your position if a dispute ever arises in the future while simultaneously preventing others from registering the same name.
Create a Privacy Policy
A privacy policy is essential and is a legal document published on a website that sets out the way in which your online business gathers, manages, stores, discloses and uses personal information. This policy is required under privacy law, mitigates risk for your business and builds trust with your website visitors.
In Australia, a privacy policy should comply with Australian Privacy Law including the Australian Privacy Principles (APPs).
- If your business collects any personal information from customers (names, email addresses, etc.), you will need a privacy policy for your site. The policy itself should, at a minimum, clearly state which information you collect, who you share that information with, and how you will use the information.
- A clear-cut privacy policy adds credibility for your business and protects the business in the event of any adverse privacy claim made against it. Legally speaking, it helps your business to demonstrate that you clearly communicate your policy to the public (including your customers and clients) and that you follow your policy.
- A privacy policy is critical even if you’re not asking for phone numbers or addresses (our website is no doubt recording the visitor’s IP address).
- A privacy policy also helps protect against reputational damage.
A link to your website’s privacy policy should always be provided in the footer of your sitemap design so that it appears (and can be accessed) on every page of your website.
Website Terms, Conditions & Disclaimers
Depending on the nature of your site, including use terms and conditions for your site is generally advised for the purposes of communicating to visitors the rules and regulations for using your website.
The nature of the terms and conditions will vary depending on the specifics of your site but these are likely to include:
- Terms about protection of intellectual property;
- Things that are prohibited when using the website;
- Disclaimers;
- Limitations on your liability;
- Use of downloadable files and other information on the website; and
- The status of links to other websites.
Sale Terms and Conditions or Service Agreement
Product based business
If your online business sells products, you must have terms and conditions with the consumer about the sale of those products.
Sale terms and conditions allow consumers to review the process of your business before they commit to a purchase. These terms include information such as:
- The products you sell and how you sell them
- Payment procedures
- Availability of products
- Delivery of products
- Cancellation policies
- Consumer guarantees
- Return, refund and exchange policies
- Disclaimers and indemnity
- Limitation on liability
- Any other laws that apply to sales and your online business
- The jurisdiction of transactions
Service based business
If you offer services rather than products, your business’ agreement with the client will often include information such as:
- The description and scope of services your online business provides
- Payment and associated terms
- Expectations of your client
- Transferring intellectual property
- Termination of agreement
- Limitation on liability
- Dispute resolution
Laws governing your business and its online presence in the international market and associated transactions are also important to consider. As your online business may be accessible globally, it is important to be aware of overseas laws that may apply to your business. Having a well-drafted set of terms and conditions that considers applicable overseas law can assist in avoiding conflicts that may arise internationally.
Exercise caution if using intellectual property
Intellectual property includes the name of your business, brand, trademarks, copyright and more.
Some key points to consider in this regard in the context of your business’ website are:
- If you’re using images, logos, video, branding, writing or designs on your website, and you don’t own them, proceed with caution.
- Copyright protection extends to any creative work the moment it is created whether or not it contains a notice that it is protected by copyright.
- Registering a trademark in an element or elements of your business’ branding grants you exclusive use of the mark, the right to licence or sell the mark and ensures no one else can legally benefit or use your mark.
If you would like to discuss any aspect of your business or you need any other legal assistance, please contact any of our experienced commercial lawyers on +61 3 9822 8588 or email HERE.
