IT law Archives

Website Legal Requirements – Tweeting – 5 Legal Offences to Avoid

There have recently been a number of high profile cases on liability for the sending of inappropriate tweets in the UK and the USA.

As tweeting becomes more and more the norm for many businesses it is important to consider the legal consequences of staff sending inappropriate tweets. Before allowing, permitting or encouraging staff to start tweeting on your behalf or with your brand you should consider creating a tweeting policy. This should set out guidelines on what is, and what is not permitted. It should also state whether any approval needs to be obtained before tweets are sent. Staff should be made aware of this policy and agree to comply with it.

Below is a brief summary of 5 possible offences that you should specifically cover in your tweeting policy.

Misrepresentation

Tweets containing false information that might induce another person to act on it.

Harassment

Tweeting words that cause ‘alarm’ or ‘distress’.

Malicious Tweets

Being “reckless” with the truth or sending false information in tweets for the purpose of damaging another’s commercial interests.

Defamatory Comments

Tweeting information that damages a person’s reputation unless you can prove that the information is a truthful, honest opinion.

Menacing Tweets

Tweeting content that is grossly offensive, indecent, obscene or menacing.

Penalties for Tweeting Offences

If a court in the UK finds you liable for any of the above offences you could be:

  • fined;
  • imprisoned for up to 2 years;
  • liable to pay damages for losses suffered;
  • liable to pay compensation for causing distress;
  • sued for libel and face an order for damages and costs.

It is therefore important that you consider whether there is a business need to protect yourself and your business from such potential “tweeting” claims.

Help

Irene Bodle is an IT lawyer specialising in SaaS agreements with over 10 years experience in the IT sector. If you require assistance with any SaaS, ASP, software on demand contracts or any other IT legal issues contact me:

irene.bodle@bodlelaw.com
www.bodlelaw.com

To register for my newsletter click here

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Website Legal Requirements – Cookies and Consent Policies

As a result of changes to the EU Privacy and Electronic Communications Directive, it is now unlawful to use cookies to collect user data without first obtaining explicit consent. Accordingly, the Information Commissioner’s Office (ICO), which is responsible for ensuring that websites comply with the new cookie law, has implemented a technical solution on its own website with the result that traffic to it plummeted.

UK  Cookie Acceptance Policy

In May the ICO placed a banner at the top of its website in order to obtain consent from users to the placing of cookies on its website. The banner stated how and why cookies would be stored and cross-referred to the ICO’s privacy statement. By clicking on the banner users consented to the use of cookies. If users did not consent, then parts of the website did not work and were not accessible.

In the following 35 days, traffic to the website fell by 90%.

Unlike the ICO’s website, many commercial websites rely upon multiple cookies for tracking, customer service, analytics and advertising revenues.

Prior Consent Required?

The current guidance from the ICO states that consent to cookies can be obtained after processing has begun. The UK authorities base their advice on the fact that the word ‘prior’ does not appear in the EU directive upon which the UK law is based. However, the Article 29 Working Party – which advises the EU on data protection issues – disagrees and claims that prior consent must be obtained to make cookie use legal.

It will now be necessary for the ICO to provide further guidance to businesses on this issue. This is however unlikely until the new proposed EU data protection law, which should better define consent and its practical meaning, is published by the European Commission later this year.

Dutch Cookie Acceptance Policy

In the Netherlands a new Dutch law requires prior “opt-in” consent before a cookie can be installed or stored on a user’s computer. The language of the proposed law is quite broad and could require website owners outside of the Netherlands to comply with the Dutch law when processing personal data of Dutch citizens. In addition the websites owners would also have to comply with their own local cookie rules, which may be different.

EU Implementation of Cookie Acceptance Policies

To date only the UK, Denmark, Estonia, Finland, Sweden and the Netherlands have introduced measures implementing the Privacy and Electronic Communications Directive.

The European Commission has set a deadline for European companies to create a uniform way for web users to opt out of being tracked by cookies within a year of the previous deadline. The Commission has said it will take action if industry does not standardise opt outs in that time.

Help

Irene Bodle is an IT lawyer specialising in Internet Law and SaaS Agreements with over 10 years experience in the IT sector. If you require assistance with any Internet Law, SaaS, ASP, software on demand contracts or any other IT legal issues contact me:

irene.bodle@bodlelaw.com
www.bodlelaw.com

To register for my newsletter click here

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Websites Legal Requirements – ASA Rules Apply to Websites from 1st March 2011

The Advertising Standards Authority (ASA) will be extending its authority to include advertisers’ own marketing communications on their websites and marketing communications in non paid-for space i.e. Facebook and Twitter from the 1st of March 2011.

Advertising Standards Authority

The Advertising Standards Authority is the UK’s independent advertising regulator. It deals with complaints about advertising which breach its CAP Code. The ASA currently only regulates paid-for online advertising on the Internet and has no authority to regulate website content.

From the 1st of March 2011 this will change and the ASA will be responsible for regulating advertisement and marketing communications on a company’s own websites and in other non-paid-for online space under its control. This will cover corporate web presences, official Facebook pages and Twitter feeds. These will all need to comply with the CAP Code.

Also, if you use and incorporate user content on your website this may also need to comply with the CAP Code, particularly if you review such content before it is posted.

Sanctions for Breaches of the Code

In addition to its existing powers, the ASA will be able to:

  • remove with the co-operation of search engines, paid-for links to pages hosting a banned advertisement (e.g. Google’s sponsored links);
  • place paid-for adverts highlighting your non-compliance;
  • publish details of any non-compliant communication and advertiser on an ASA website.

Further Information

Further information will be issued by the ASA in 2011 on the above rules and how in practice these will apply to website content.

Help

Irene Bodle is an IT lawyer specialising in SaaS agreements with over 10 years experience in the IT sector. If you require assistance with any SaaS, ASP, software on demand contracts or any other IT legal issues contact me:

irene.bodle@bodlelaw.com
www.bodlelaw.com

To register for my newsletter click here

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Website Legal Requirements – Contact and Company Information

Does your website comply with the legal requirements for providing contact information and company information in the UK?

Contact Information

The following contact information must be provided in an easily accessible position on your website:

  • an email address
  • telephone number
  • fax number (if you have one)

Increasingly companies do not provide an email address and/or telephone number to avoid receiving unwanted spam emails and telephone calls.

Instead many companies only allow customers to contact them by completing an online contact form. This may breach the Electronic Commerce (EC Directive) Regulations 2002.

Can I use a Contact Form?

The European Court of Justice has ruled that an electronic contact form complies with the E-commerce Directive, where the supplier answers queries sent by customers within a period of 30 to 60 minutes. However, if a customer requests a non-electronic means of communication from the supplier in the contact form i.e. a telephone number, the supplier must provide this.

How to Use a Contact Form Successfully

If you decide to use a contact form instead of giving a contact telephone number or email address ensure that you respond to e-mail queries from customers in a timely manner. You do not automatically need to provide a  contact telephone number, but you must be able to do so, should a customer request this.

Please note you must provide a contact email address on your website.

About Us Information

In addition to the above you are required to provide the following information on your website:

  • your legal name i.e. XYZ Ltd. If this is different from your trading name any differences should be explained.
  • your geographical address,  which must be the registered office if you are a company.
  • which country your business is registered in
  • the registration number of your company
  • details of any supervisory body which regulates your business i.e. the FSA. For regulated bodies more detailed information is required.
  • your VAT number
  • where you are registered for VAT
  • clear details of prices and whether or not delivery and/or tax is included

Help

To have your website reviewed for compliance with English law or for  queries about compliance with the contact and information requirements of the E-Commerce Directive please contact:

irene.bodle@bodlelaw.com
www.bodlelaw.com

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SaaS, ASP Agreements – Distributor or Agent – Is there a Difference?

To find prospects, leads and sell SaaS software to customers on a global basis outside of the countries in which the supplier is located, you will need to use a distributor or agent.

Suppliers need to decide whether the local partner acts as an agent or a distributor. There are important differences between agency and distribution and the advantages and/or disadvantages of both need to be carefully considered.

What is an Agent?

An agent is a person or company who acts on behalf of the SaaS supplier to find leads and/or assist with sales of the supplier’s SaaS software to local customers in the agent’s territory.  The agent has no legal relationship with the customer – the agent has no contract with the customer.  The supplier enters into a SaaS agreement, with the customer using the supplier’s terms and conditions and SLA.

Any implementation issues or software errors that the customer encounters during the course of the SaaS agreement will be the supplier’s problem. The supplier will be liable to the customer under the SaaS agreement and will be obliged to resolve all issues directly with the customer.

What is a Distributor?

A distributor is a person or company who enters into a distribution agreement with a supplier to purchase the supplier’s SaaS software and services. The SaaS software will be sold to the distributor pursuant to the supplier’s SaaS terms and conditions and SLA. The distributor then resells the SaaS software and services to its local customers in the territory using the distributor’s own terms and conditions and SLA. A reseller is the same as a distributor.

The supplier has no legal relationship with customers – the supplier has no contract with customers. The distributor sells the SaaS software directly to customers, as if it were his own software. Any implementation issues or software errors that the customer encounters during the course of the SaaS agreement will be the distributor’s problem. The distributor will be  liable to the customer and will be obliged to resolve such issues directly with the customer.

Advantages and Disadvantages of Agency Agreements

Advantages:

  • the local knowledge of the agent
  • established commercial contacts of the agent
  • the agent speaks the language in the territory
  • the agent understands the local selling culture and customer requirements
  • the supplier retains control over the sales process and the choice of customers
  • the supplier uses its own terms and conditions

Disadvantages:

  • the supplier must adapt its terms and conditions to comply with local law
  • terms and conditions must be in the local language
  • if the agent is located in the EU, the supplier must pay commission for up to a year after termination of the agency agreement (regardless of the reason for termination)
  • the supplier can be liable for paying tax in some territories – as he is deemed to be trading there

Advantages and Disadvantages of Distribution Agreements

Advantages:

  • the local knowledge of the distributor
  • established commercial contacts of the distributor
  • the distributor speaks the local language
  • the distributor can provide customer support in the local language and within the customer’s local business hours
  • the distributor understands the local selling culture and customer requirements
  • the distributor uses its own terms and conditions which are already in the local language and compliant with local laws and regulations
  • the supplier does not need to adapt its terms and conditions to comply with local law
  • the supplier does not have to pay any mandatory fees after termination of the distribution agreement
  • the distributor will be responsible for obtaining local licenses and permits

Disadvantages:

  • the distributor has no control over the sales process
  • the distributor has limited control over choice of customers
  • in the EU,  anti-competitive terms in the agreement can result in large fines, for example price fixing, prohibiting passive sales
  • the length of the agreement  cannot be unlimited if exclusive rights are granted
  • local competition law will also apply to agreements involving parties outside of the EU

Help

Irene Bodle is an IT lawyer specialising in SaaS distribution and agency agreements with over 10 years experience in the IT sector. If you require assistance with any agency or distribution agreement, SaaS agreement or any other IT legal issue contact me:

irene.bodle@bodlelaw.com
www.bodlelaw.com

To register for my newsletter click here

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Cloud Computing and the Legal Cloud

Everyone is talking about “cloud computing” but what is it?

What is Cloud Computing

Cloud computing is a new and rapidly expanding delivery model, often used to supply IT services to customers via the Internet. Cloud computing involves the sharing of resources, software and information on the Internet for users to use on their computers and other devices, on-demand.

Other Related Terms

Where software is supplied using the cloud you will hear people refer to SaaS, software as a service, ASP services and software on demand to describe the provision of the services.

Why refer to a “cloud”

The term “cloud” is used as a metaphor for the Internet, based on the cloud drawing used in the past to represent the telephone network, and later to depict the Internet. Typical cloud computing providers deliver business software applications online which are accessed from another web service or software i.e. a web browser while the software and customer data are stored on servers, hosted by the service provider.

The Legal Cloud

Most cloud computing infrastructures consists of services delivered through hosting centres. The service provided to users are usually set out in a service level agreement (SLA) and the software licence for use of the services and software will be set out in a SaaS agreement.

Help

For assistance with cloud computing matters, SaaS, ASP, software on demand contracts or any other IT legal issues contact:

irene.bodle@bodlelaw.com
www.bodlelaw.com

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Trademark – Portfolio Management

What issues need to be considered in choosing and managing a company’s trademarks?

Registration

  • Focus on the company name or products.
  • Marketing should decide which trademarks to register.
  • Consider registering products names in local markets.
  • If companies are acquired, consider registering trademarks for new products or company names if no trademarks are already registered.
  • Carry out a trademark search before trying to register new trademarks, to see if they are available and what other similar marks are already registered.

Ownership

  • All trademarks should be registered and owned centrally by one company (holding company if possible).
  • Where it is not possible to register ownership with the holding company, discuss with marketing which subsidiary should be owner.
  • If companies are acquired which already have registered trademarks, ownership should be transferred to the parent in the long term (check the share purchase agreement for restrictions).
  • All changes in company names, address etc of the owning company must be forwarded to the local trademark register.

Registration Process

  • Obtain a costs estimate for any proposed registrations. (Roughly speaking each trademark costs 5,000 Euros to register and maintain over a 10 year period).
  • For international or expensive multiple registrations also obtain prior authority from marketing.
  • Decide which classes the trademarks need to be registered in. Note in some jurisdictions classes may differ as not all countries follow the Nice Classifications.
  • Decide which countries the marks should be registered in. Don’t forget the EU.
  • Consider extending an EU mark or local mark once registered to an international trademark.
  • Consider whether any non-treaty countries need to be applied for in addition.
  • Consider whether logos or Chinese character registrations are required in addition.
  • Local trademark lawyers usually have to register trademarks due to local restrictions on who can communicate with the trade mark and patent office.
  • Keep a all registrations and applications in a table to have an overview of the portfolio.
  • Update this table with all changes as the process moves forward to registration.

Watch Notices

  • Use a professional trademark watch service to monitor registrations of marks similar to your trademarks worldwide.
  • Watch “word” trademarks for all of your registered trademarks in the classes in which they are registered.
  • If new trademarks or classes are added to your portfolio the watch services should be changed to cover new classes and trademarks.
  • Watch “picture” trademarks for any logos that you have registered.
  • Watch notices usually arrive on a daily basis.
  • All notices must be checked promptly as deadlines for opposing the registration of trademarks are very short. If missed, no appeal can be made out of time.
  • Enter deadlines contained in watch notices into a critical dates, reminder book.

Trademark Disputes

  • Obtain authorisation from relevant persons before initiating any dispute procedure.
  • All disputed trademark issues should be entered into your trade mark table.
  • All deadlines for taking actions in dispute matters should be entered into a critical dates reminder book.
  • Local trademark lawyers usually have to be used to dispute trademarks due to local restrictions on who can pursue an action with the trademark and patent office.

Renewals

  • Trademark protection in all jurisdictions is for 10 years usually from either the date of filing or the date of registration of the application.
  • Renewals are not automatic and if a trademark lapses someone else can obtain the trademark.
  • Check the critical dates reminder book monthly for all pending renewals.

Original Certificates

  • When a trademark is registered you will be sent the original certificate. This proves ownership of the trademark.
  • Check that the details on the certificate are correct i.e. trademark, class, address, owner etc.
  • Update your trademarks table with all renewal dates, registration number and other details.
  • Enter all deadlines, in particular, renewal dates in the critical dates reminder book, with reminders.
  • Inform marketing that the mark has been registered – as it must be used in order to protect it from lapsing for non-misuse!

Brand Awareness

  • Obtain regular information from local marketing departments on our use of trademarks.
  • Centralise storage of this information as this will help if you need to provide information quickly to oppose registration of a trademark.

Help

For assistance with trademarks or any other IT legal issues contact:

irene.bodle@bodlelaw.com
www.bodlelaw.com

To register for my newsletter click here

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Domain Name – Portfolio Management

What issues need to be considered in choosing and managing a company’s domain names?

Which Name to Register

  • Focus on the company name worldwide.
  • Marketing should decide on which domain names to register, bearing in mind which trade marks the company has registered.
  • If companies are acquired, consider registering domain names if none are already registered.
  • Carry out a domain name search at www.nic.com before trying to register new domain names.

Ownership

  • All domain names should be registered and owned centrally by one company (a holding company).
  • Where it is not possible to register ownership with the holding company (owner needs to be a locally registered company etc) consider which subsidiary should be the owner.
  • If companies are acquired which have already registered domain names – consolidate ownership to the holding company of the acquired company – if there is one. In the long term, after earn outs, or tax implications have been investigated, ownership should be transferred to the ultimate holding company, if possible (check the share purchase agreement for restrictions)
  • No domain names should be owned by individuals. (exception in a few countries where the owner has to be an individual. e.g. Italy)
  • All changes in company names, address etc of the owning company must be forwarded to the domain registry so that they can update their records. It is an offence to have incorrect details at most registries.

Registration

  • Use an external DNS provider to register all domain names, if you have multiple domains.
  • Obtain a costs estimate before registrations are made, if there are multiple registrations.
  • Add all domain names that are to be registered into a domain name portfolio table.
  • Update these tables whenever the registration process has a change in status or any domain name actions are in progress.

External DNS Provider

  • Restrict the number of employees entitled to instruct the DNS provider – they will charge for everything they do.

Domain Name Disputes

  • All disputed matters should be entered into the domain name portfolio table.
  • As the dispute progresses the table should be updated
  • All deadlines for taking actions in dispute matters should be entered into a critical dates book.
  • Local trade mark lawyers usually have to be used to deal with domain disputes due to local restrictions on who can pursue an action with the domain registry and such disputes are often in the local language and local courts.
  • Obtain authorisation from before initiating any dispute procedure.

Renewals

  • A Domain name registration is usually valid in most jurisdictions for 1 – 2 years.
  • Renewals are not automatic and if a domain name lapses someone else can register the domain name.
  • External DNS providers can monitor and renew all domains that they administrate and have on their servers. Any names not on their servers must be monitored by you and the deadlines for renewals must be entered into your critical dates book

Invoices

  • All invoices can be dealt with by the external DNS provider.

Help

For assistance with domain names or any other IT legal issues contact:

irene.bodle@bodlelaw.com
www.bodlelaw.com

To register for my newsletter click here

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