Internet communications, websites and the law
The Internet has developed rapidly as a self-regulating or even unregulated medium of communication. However, its economic potential is so great that regulation is increasingly required to ensure its continued growth. A balance between this growth potential and regulation or stagnation is a difficult one to strike.
The Internet is creating legal headaches both for those using it and for companies who publish a website or are developing e-commerce services. Information technology law is in a state of flux, and many issues are subject to interpretation. A particular complication is the global status of the Internet, meaning that the law in other jurisdictions plays an increasingly important role. US law has an increasing influence on legislation around the globe, but due to the multi-jurisdictional nature of the Internet, international co-operation is probably the only way the Internet will ever be successfully regulated. Several international organisations, such as the European Union and the World Intellectual Property Organisation (WIPO), are looking at clarifying regulation for the digital age and giving the basic legal foundation for doing business in an electronic market.
Until English law catches up with the Internet, the main issues will be debated through case law and precedent. Existing legal principles therefore apply, in particular intellectual property and data protection law.
Some key issues relating to law and the Internet are:
- domain names - legal disputes over domain names are likely to increase as the number of registrations increases. This issue is closely tied up with a company's attempts to protect its brand and hence with existing trademark registrations.
- copyright - website owners need to check the authenticity and authorship of material on their sites and any linked from them. The safest approach is not to include a link to another site without that site owner's consent.
- data protection - data protection legislation affects all information held on a computer, and hence has implications for information obtained from website users, as well as for the confidentiality of e-mail messages in the workplace.
Protecting your brand
The "first come first served" registration of domain names means that for many companies their company or product name is not available as a domain name. Potential legal remedies, such as trademark infringement or the common law action of passing off, mean high litigation costs and can be ineffective when, as is often the case, the defendant is not resident in the same country.
To avoid such problems you should register all your brands as domain names as soon as possible. Consider also how to protect your brand from unauthorised use, perhaps by registering it as a trademark in other countries.
Protecting your website
Your website is a perfect tool for the dissemination of information about your company and products, however you want to protect both it and yourself from misuse and theft. In order to do this it should include both a copyright statement and a liability disclaimer.
A copyright statement should set out the terms of access and use relating to the site's content, and be available via a prominent link from every page. It should cover what users are allowed to do with the material on the site, such as downloading and printing, and any activities that you do not permit, such as altering the material or reproducing it without acknowledgement.
Liability disclaimers are particularly important for websites that operate any kind of electronic commerce service. The statement should disclaim any liability for the content of the site, stating the law under which any dispute will be governed. To be fully effective users should be obliged to signify acceptance of a site's terms and conditions before proceeding. Without such a disclaimer you will be liable for any inaccuracies on your site that result in a user suffering financial loss or physical damage as a result of using it.
Linking to other websites
Hypertext links may be a fundamental component of the Web, but this should not lead to a blanket assumption that all links are legal. A link is simply a pointer to a webpage held on a remote server, but commercial considerations may mean that the owner wishes to restrict how pages are retrieved and which route is followed to access them. Confusion of authorship can also arise, in particular with the use of frames, and deep links into a site may present material out of context.
Total freedom to link sites without consent may well be neither desirable nor legal, but unless you are linking against the express wishes of the copyright owner, or are bypassing a security or payment system, linking can probably still be viewed as safe, in particular to a home page. To cover all bases you could e-mail the web author to let him/her know you propose to link to the page, and you may be rewarded with a reciprocal link.
Data protection and the Internet
Your website, or the systems used to administer it, may well hold information which can be regarded as personal data (data relating to living individuals who can be identified from that data), such as
- personal profiles or client directories
- details of website visitors, obtained from on-line forms or e-mail list subscriptions
- databases for direct mailing
Under data protection legislation the consent of the data subject to your holding their information must be explicit - any forms used for gathering personal data from visitors to your website, or any procedures you use to collect personal data from your website, must give the data subjects an opportunity to give or withhold their consent. "Opt-out" tick boxes should be included in all mailings, and in some circumstances customers should be asked to "opt in".
Explicit mention should be made of the Internet in your data protection registration, giving the particulars of any data held, the purposes for holding it, its source, any person to whom you may disclose the data and the overseas countries to which the data may be transferred.
To find out more about the Internet and the law
- data protection and the Internet - advice from the Data Protection Commissioner
Reviewed January 2011
last updated : 21/01/2011
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