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. 

Celebrating World IP Day at M-SParc: Basic Tips for Startups and other Small Businesses

M-SParc (Menai Science Park)

Author Jane Lambert
© 2018 Jane Lambert: all rights reserved

Jane Lambert

Last Friday I visited M-SParc (the Menai Science Park) to participate in Wales's celebrations of World Intellectual Property Day (see Happy World Intellectual Property Day 26 April 2019). I discovered M-SParc while I was on holiday in Beaumaris last summer and it is or at least should be a tourist attraction in its own right for its architecture and environmental engineering.  It also has an excellent eatery called Café Tanio which is open to the public as well as staff and tenants during office hours.  I had a delicious freshly cooked chicken curry, a slice of lemon and meringue pie and sparkling mineral from a local spring for just over £8.

M-SParc celebrated World IP Day with a lunchtime seminar on intellectual property in its boardroom at which I was one of three speakers.  The audience included several of the park's tenants and other local businesses, representatives of Welsh Water and Coleg Menai, M-SParc's managing director, Pryderi ap Rhisiart and one of his colleagues.  The other speakers were Huw Watkins of BiC Innovation and Steve Livingston of IP Tax Solutions.  Both speakers, who are experts in their respective fields with national practices and international reputations, are based at M-SParc.  That speaks volumes about the quality of the professional services that are available to businesses in the science park as well as the rest of North Wales. London and the rest of the UK come to Huw and Steve and not the other way round.

My presentation was a short introduction to IP and I have posted my slides and handout to Slideshare in case anyone who missed my talk would like to read them. Huw spoke about the services that his company offers and Steve discussed the tax incentives that are available for innovation in technology and creativity in the arts.  After the talks, I held four pro bono consultations with members of the audience that consumed the rest of the afternoon.  I was one of the last to leave the park just after 17:00.

I can't identify the businesses or mention the topics that I discussed for reasons of professional confidentiality but I think I can give two tips to businesses in Wales and elsewhere on the basis of my visits to the Anglesey Business Festival in October, Ty Menai in January (see IP for the Welsh Food and Packaging Industries 30 Jan 2019 NIPC News), Pitch Perfect (see A Good Way to spend St David's Day 2 March 2019 NIPC News), Aberystwyth University and the Beacon Enterprise Centre in Llanelli for Business Wales (see Intellectual Property for Startups and other Small Businesses 26 March 2019) in March and M-SParc last Friday.

The first tip is that every business with customers has goodwill which is likely to be connected with its name, the names of one or more of its products or services, a logo, a combination of name or logo or some other sign.  It is in the interests of the business and indeed its customers that that sign is associated with that business and none other.  Sometimes unscrupulous competitors try to muscle in on a market by presenting their goods or services under the same or similar sign.  Other times a competitor can adopt the same or similar sign quite innocently. Either way, it can result in lost sales and damaged goodwill.

Registering a trade mark need not break the bank.   The basic office costs of an online application for a UK mark are £170 although I would strongly recommend obtaining a search before making an application  I would also advise businesses to instruct a chartered trade mark attorney to do the search, draw up the specification, correspond with the Registry and any objectors who many appear and obtain the grant  s (see Whom you gonna call? IP Professionals and what they do 2 April 2019).  Having said that, plenty of businesses have registered marks without using an attorney.  An attorney will charge a few hundred pounds on top of the search and filing fees for his or her trouble but that is one hell of a lot cheaper than the cost of an opposition.  Ideally, I would also pay for a watch service and take out IP insurance against the costs of enforcement.

The second tip is to ensure that website terms and conditions pass muster. Every website should have at least two sets of terms, namely website access terms and a privacy statement.  The website access terms are essentially an end-user software licence.  A website consists of code which has to be reproduced in order to appear in a browser.  Such reproduction requires permission and that can be subject to conditions. These could include restrictions on copying materials on the site or specifying that the terms are governed by the laws of England and Wales and that any disputes will be referred to courts in those countries.  The privacy statement must contain the information that should have been registered with the Information Commissioner. If cookies are used,  visitors must be made aware of that.  Any special or unusual use of data extracted from visitors to the site should also appear in the privacy statement.   If the site is to be used for e-commerce it must comply with The Consumer Protection (Distance Selling) Regulations 2000 and The Electronic Commerce (EC Directive) Regulations 2002 at the very least.   I published Basic Law for Web Designers: No. 2: Website Terms and Conditions in JD Supra on 27 Aug 2011 and although that article may be getting a little long in the tooth it is still good law.

Everybody who attended the seminar on Friday regarded it as a foundation upon which we can build.  The next step may be to arrange for a patent librarian to show how to carry out patent, design and trade mark searches, a specialist broker to talk about IP insurance or a chartered patent agent to run a clinic.  In the meantime, if anyone has a problem with a third party or an examiner, needs something drafted for a business transaction or some advice on IP law, he or she should give me a call on 020 7404 5252 or send me a message through my contact form.  If it is straightforward and I know the answer I shall tell you for free. If it requires some work I will warn you and we can agree a specification of work and a fee or charging basis.  Any fee I may charge will be reasonable and properly negotiated in advance. There will be no nasty surprises.

Further Reading

2 Apr 2022 Diwrnod Eiddo Deallusol y Byd / World Intellectual Property Day

26 Apr 2019 Jane Lambert  Happy World Intellectual Property Day

10 Apr 2019  Jane Lambert Anglesey to celebrate World Intellectual Property Day