Website Access Terms and Privacy Statements - Something that every Website should have

Jane Lambert

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,

What's WAT

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

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").
(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."

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.

Privacy Statement 

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. 

Language

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.

Further Information

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. 

"All At Sea!" - Terms and Conditions of Business

Author Tfioreze
Licence Creative Commons Attribution-Share Alike 3.0 unported
Source Wikipedia "Ocean"

Jane Lambert

Do you remember the fuss over Seaborne Freight when the press found out that its terms and conditions were like those used by takeaway food delivery services?  That happens more often than many would think.  Sometimes it is the fault of the draftsperson who recycles terms he or she has used for a previous client.   Other times, a client lifts the terms from a similar company's website in an attempt to save legal fees.

It is never a good idea.  For a start, terms and conditions are likely to be protected by copyright as original literary works.  Secondly, it is unlikely that clauses meant for one business will be entirely suitable for another. It is a bit like wearing clothes that have been snatched from someone else's washing line.

The primary function of terms and conditions is to regulate risk.   That is not just the risk of liability for loss or damage resulting from something going wrong.  It includes other risks such as the risk of non-payment, non-acceptance of delivery and customers' or suppliers' insolvency.   However, terms and conditions will not exclude or mitigate all risks.  For instance, S.2 (1) of the Unfair Contract Terms Act 1977 precludes exclusion or restriction of liability for death or personal injury resulting from negligence by reference to a contract term or notice.  Liability for other loss or damage can only be excluded or restricted by reference to a contract term or notice only if and in so far as it satisfies a requirement of reasonableness.

Terms and conditions can be compared to the keep of a medieval castle.   The moat keeps out most undesirables such as wild animals and sturdy vagabonds, and the curtain wall keeps out many of the rest, but the last line of defence is the keep.  Best practice can be compared to the moat, insurance to the curtain wall and the terms for those liabilities against which it is impossible to insure.

A good draftsperson will draft his or her terms and conditions with the company's business plan in one hand and its insurance policy in the other.  Ideally, he or she will have spent some time with the company to understand its business, identify the risk areas and ascertain ways of alleviating them. Such an exercise will not be as cheap as lifting another set of terms off another company's website and altering the names but it should be a lot safer and hence more economical in the long run.

Anyone wishing to discuss this article may call me on 020 7404 5252 during office hours or send me a message through my contact form.