Online Regulations - Your Website and the Law

You should also request a warranty from the designer that confirms they did not copy the content from a third party and that the content provided by them will not infringe the intellectual property rights of a third party. While it would be unlikely that a reputable designer would do such a thing, you don’t want to be sued because the designer has copied the design or content of the website from a third party. In the event you do need to make a claim against the designer, you should check that the designer holds sufficient professional indemnity insurance.

When your website is ready to go public, you need to find an internet service provider (ISP) to host your website. The service expected from an ISP depends upon the importance of a website to your business.

If your business model places great emphasis on your online presence, particularly if your products or services are sold online, you should request certain ‘downtime’ assurances from your ISP. Downtime refers to a period during which your website is inaccessible due to a hosting problem or ISP maintenance. Obviously you’d prefer to minimise this downtime, and certain targets or rebates should be written into the hosting agreement. While this may not be so crucial if a website simply states the name and address of a business, imagine the losses that a business like Amazon would incur if its website regularly crashed.

Online security is also an issue if you intend to collect sensitive customer data. You should satisfy yourself that the ISP has suitable measures in place to minimise the risk of unauthorised access to, or loss of, your data. Both physical access and on-site environment as well as appropriate technological measures are important.

Once created, a live website is not supposed to be a static creation. In the same way that a business will vary its advertising and marketing through more traditional media, similar attention should be given to your website.

The bottom line for whoever operates a website is that the information posted about a company’s business on its website remains a form of advertising of the goods                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   and services offered by that company and should be treated as such. It should be kept up to date and not mislead or deceive those viewing the website.

Australian website operators should be particularly wary of breaching Part V of the Trade Practices Act 1974 (the TPA), along with the various Fair Trading laws of each state that generally mirror the TPA. These prohibit misleading or deceptive conduct, including the making of false or misleading representations. You should be aware that it is unnecessary to prove the conduct actually misled or deceived anyone, just as it isn’t necessary to prove intention to mislead and deceive—it’s sufficient if the public is likely to be misled or deceived.

Breaches of these areas of the TPA are punishable by fines of up to $1.1 million for corporations and $220,000 for individuals. The penalties imposed by Fair Trading laws vary from state to state but may be up to $110,000 for corporations and $22,000 for individuals. The usual array of legal remedies is also available to those who suffer as a result of such misrepresentations, including a claim for damages and injunctive relief.

In 2002, Toyota’s website came under the spotlight of the Australian Competition and Consumer Commission (ACCC). Toyota was slow to respond to the detection of errors on its website relating to the features of one of its products. Following an ACCC investigation, Toyota undertook to periodically audit its website and compensate buyers who were misled.