In this three-part series of posts, we bring you a checklist of questions to help you tackle the challenge of website legal compliance. Part 1 and Part 3 are also available.
Are your terms and conditions of sale binding?
It is imperative that online purchasers are bound by the terms and conditions of sale or engagement. Simply making terms and conditions available by hyperlink may not be sufficient to incorporate the terms and conditions of sale into the purchase arrangements.
It is generally recommended that purchasers should be required to scroll through the terms and conditions of sale and click an "I Accept" icon before proceeding to checkout and purchase. This mechanism is intended to ensure that the terms and conditions of sale are fully incorporated into the agreement with purchasers. Under Irish contract law all the terms and conditions and, in particular, any exclusions of liability must be brought to the attention of purchasers.
Alternatively, the terms and conditions of sale may be included in a hyperlink to which the purchaser is referred along with an icon stating that the purchaser has read and understood them, and which icon purchasers must click before purchase. While browse-wrap agreements have been endorsed in the Irish courts to make Terms of Use of a website enforceable against commercial defendants, the hyperlinking approach may not be as effective as the mechanism described above.
Are your terms and conditions unfair?
If you sell goods or services to a consumer, you should consider whether your terms and conditions are "unfair." The Unfair Terms in Consumer Contracts Regulations 1995 (as amended) provide that unfair terms will not be binding on a consumer.
Do you need website terms of use?
Website terms of use are a separate document to a privacy statement or terms and conditions of sale. They set out the terms governing the use of the website by browsers. Website terms of use are important for a number of reasons. In particular, they contain important provisions protecting the design of the website and other intellectual property accessible via the website. In addition, website terms of use limit a business's liability if, for example, use or cessation of the website causes damage or loss to a browser.
Do you sell electrical and electronic equipment online? If so, does your website comply with the WEEE Regulations?
The WEEE Regulations1 apply generally to distributors, retailers and producers of electrical and electronic equipment ("EEE"), including those who sell online. If you sell electrical or electronic equipment online, your website must set out certain prescribed information to comply with the WEEE Regulations. While the types of EEE subject to the WEEE regime have not changed substantially from those listed in the 2002 WEEE Directive, the transitional phase will end in August 2018 and all EEE will be covered by the scope of the recast Directive and Regulations. In addition, you must register as a distance seller with the national WEEE registration body of the Member State into which you are selling.
The WEEE Regulations also impose obligations on online (and other) sellers in relation to the collection of waste electrical and electronic equipment from purchasers of new electrical and electronic equipment.
Is your website accessible to persons with disabilities?
Equality legislation requires service providers to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if, without such special treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service. This can include making your website accessible to persons with disabilities. For example, is all information expressed on your website with colour also available without colour? Does content on your website blink or move?
Is your website factually accurate?
With limited exceptions, the publication of misleading advertising and comparative advertising is prohibited by the Misleading and Comparative Marketing Communications Regulations 2007. Further, it is a criminal offence to publish false or misleading statements as to services or false or misleading indications of prices or charges. Accordingly, you should be confident that the content of your website is factually accurate and not misleading.
Have you contracted out of your legislative obligations?
It is a criminal offence not to comply with some of the above obligations. However, it is also possible to contract out of some of these obligations if the user is not a consumer. This can be done through the website terms of use or sale.
See next week's post for more guidance on website legal compliance.
Footnote
1 European Union (Waste Electrical and Electronic Equipment) Regulations 2014 which implement the recast WEEE Directive (Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on Waste Electrical and Electronic Equipment).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
