When I talk to business owners in Wales (or indeed anywhere else for that matter) there is usually at least one who wants to talk about terms and conditions. Usually, he or she wants to talk about conditions of sale or service. Sometimes about procurement and purchase. If a website is to be used in business, then it should display the terms upon which goods are to be traded. I discussed what they should be in "All At Sea!" - Terms and Conditions of Business on 15 April 2019. But in addition, it should also have website access terms ("WAT") and a privacy statement and so too should every other website,
A WAT is essentially a licence. In order to visit a website, an internet user has to run the digital code that represents text, images, sounds, animations and other content through a browser and that involves reproduction. The noughts and one that the browser converts into screen and speaker output are literary works within the meaning of s.3 (1) of the Copyrights Designs and Patents Act 1988. Reproducing a copyright work is an act restricted by s.16 (1) (a) of the same Act. It can only be done lawfully with the consent of the copyright owner. The WAT are the terms upon which the terms on which the owner of the copyright in the website content gives his or her consent.
The terms of the WAT will depend on the needs of the business owner but a typical licence might include:
- a description of the licence
- an acknowledgement of the owner's intellectual property rights
- undertakings not to do certain acts such as downloading copyright work or deep linking
- disclaimers of certain types of liability in so far as may be permitted by the Unfair Contract Terms Act 1977 and other legislation
- reservations of the right to vary the terms
- clauses severing any void or unenforceable provisions
- choice of law. and
- choice of jurisdiction.
The Licence Description
The most important part of the WAT is the licence which will look something like this:
"(1) Access to this website requires the reproduction of copyright material which can be done lawfully only with the licence of XYZ Ltd a private company incorporated in Wales with limited liability under company number,,,,,,,,,,,,,, the registered office of which is at ......................... ("the Company").In the "choice of law" clause you will provide that the terms are to be construed and enforced in accordance with the laws of Wales and England. In the choice of jurisdiction clause, you will require the internet user to submit to the jurisdiction of the courts of Wales and England. You can even specify that the user will not object to the issue of proceedings out of the Chancery District Registries of Caernarfon, Cardiff or Mold.
(2) The Company grants such licence only on the following terms.
(3) If you do not accept these terms you may not visit this site and must leave immediately."
This is not a contract but a statement of policy. It essentially tells visitors what data will be collected, how it will be used and how and where to obtain further information, request access to personal data under the provisions of the Data Protection Acy 2018 and lodge objections. As several provisions of the Act require the informed consent of the data subject it is important that it is full and accurate. It does not have to be drawn up by a lawyer but it should be checked by one, I have a specialist blog on data protection at http://nipcdp.blogspot.com/ which contains articles on the Act and General Data Protection Regulation.
If you translate the WAT or privacy statement into Welsh, make sure that it is done or at least checked by a Welsh-speaking lawyer. Remember that the WAT and statement will be available in the rest of the world so there should be at least one version in English.
Anyone wishing to discuss this article or any of the topics mentioned in it may call me on 020 7404 5252 or send me a message through my contact form.