The world-wide web celebrates its 16th birthday this year; sometimes it can be hard to take in quite how many aspects of our lives have been revolutionised by the internet in such a short space of time. With so many companies now carrying out all of their business via the web, this article takes a canter through some of the things to consider when setting-up and operating a website, especially one enabled for e-commerce.
Domain names
One of the first steps in creating almost any website is to decide on a domain name. This is the combination of letters and characters that will form the basis of the website and email addresses. Domain names can include only the letters a to z and the numbers 0 to 9 and it must also include a domain name extension (also called a top level domain name), the most common of which (.com and .co.uk) are now familiar to almost everyone.
Originally .com was intended for commercial organisations, .net for internet service providers (ISPs), and .org for non-profit making organisations. Sixteen years on and hundreds of extensions have been established and nearly anyone can register a domain name with any of them. Even so .com is generally still seen as the most valuable extension, the one that most companies seek to register first, although many UK companies find the UK-specific .co.uk sufficient if they trade only within the UK.
Once you have decided on the right domain name you need to find out if it is still available or if it has already been registered to somebody else. This is very straightforward; simply search the WHOIS public database. And even if your favoured domain is already registered it may still be possible to buy it. The easiest way to do this is usually through a broker.
It is also worth bearing in mind that domain names have no direct relationship with trademarks; just because a company has registered a certain trade mark this does not necessarily mean it is also entitled to register a similarly-styled domain name. However, the registering of a domain name which incorporates the registered trade mark of a third party may infringe that party’s trade mark. It is also possible to build up rights in a domain name which may then be capable of protection as a trade mark.
Many companies register similar domain names but with different extensions in order to ‘reserve’ the name and prevent anyone else from using it. Registration does not provide perpetual ownership but it does mean that for as long as the renewal fees are paid the registrant can use, assign and license the domain name as they see fit.
Website development
Companies continually seek ever more creative ways to design and present their websites and to create exactly the right kind of internet presence. Most do not have these capabilities in-house and so they employ a specialist to do the job for them. If you are considering this approach make sure you have a formal agreement with the site developer/designer and pay careful attention to its terms.
The main issue here relates to ownership of the intellectual property (IP). If the site is developed by an external consultant then the IP in the design and layout will vest not in you, the commissioning client, but in the consultant who did the work. To ensure that you own all of the IP in both the website and its content the copyright will need to be formally assigned to you. In addition, if the developers have used some of their own creative material (or that of a third party) then you will need a licence to use it. Indeed, you may also wish to obtain some protection – in the form of a warranty or an indemnity – against the possibility that your consultant has not secured all of the necessary rights to any third-party IP embodied in your site; if they have not then even routine use of your site might infringe someone else’s IP rights.
Hosting
For a website to connect to the internet it must be resident on a server so that internet users can access it and browse its contents. This ‘hosting’ function can be carried out by you, in-house, although this is usually viable only for owners of high volume, complex websites. More commonly a third-party service provider is employed and the website resides either on a dedicated server owned by the host or on a server which you own but which is located at the host’s premises.
When entering into a website hosting agreement consider closely the provisions dealing with downtime and bandwidth. Typically an agreement of this type will state service levels including a requirement for a certain amount of uptime per day/month/year. It will also place the host under certain obligations to ensure that there is sufficient bandwidth to accommodate all of the website’s traffic as well as to maintain adequate security.
Website terms and conditions
Before your website goes live ensure that it contains appropriate terms and conditions of use. To ensure that these will bind every visitor they must be easily accessible via a prominent notice on the site’s homepage. Ideally, viewing the terms should be the first thing every visitor is obliged to do as they enter your site, and they should then be required to ‘accept’ those conditions (by clicking a button) before they can proceed any further. However, many companies find an arrangement of this type to be impractical.
Nonetheless the terms should set out clearly what visitors can and cannot do with the content of your site, stating that all IP on the site is the property of you, the website owner, and that visitors must not post illegal or harmful content or do anything which may infringe the IP rights of third parties. If your site collects data about visitors (including the use of ‘cookies’) it is important to include data protection notices setting out how you plan to use the personal data you are collecting and whether or not it will be passed to third parties.
Terms and conditions of sale
If you plan to sell goods online, or to enter into contracts for services via your website, then the site must also contain the terms and conditions (T&Cs) which govern those arrangements. Many of the same rules apply to contracts made online as apply to contracts made face-to-face, but there are also some additional legal implications when selling online. In particular your online T&Cs must cover issues specific to contracts made at a distance by including a description of how the online contract is formed and provisions concerning a consumer's right to cancel as well as details of delivery, pricing and payment.
To ensure that the T&Cs are properly incorporated into the contract they must be brought to the buyer’s attention before the contract is made. Do this by using a hyperlink to a separate page, including a tick box for acceptance, or by obliging customers to scroll through the T&Cs before they are allowed to place an order. The latter is the safer option but perhaps also the less user-friendly.
Under the Distance Selling Regulations customers have a right to cancel the contract within seven working days of receiving the goods; this right must be conveyed to the customer at the point of sale. The Regulations also provide that in business-to-consumer contracts the supplier must perform its obligations within 30 days of an order being placed. (For business-to-business contracts a longer delivery time can be agreed provided it is reasonable.) And finally, your website should contain up-to-date details of prices, delivery options and how customers can return faulty or unwanted goods.
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.