Key Legal Points For Websites

By Maria Anassutzi
Companies wishing to create or re-vamp their websites must, first of all decide and then agree how the websites should be designed and developed. This should be specified in a website design and development agreement which will ensure that, the company gets what it requires in relation to the website designs and the website hosting. This is achieved by imposing an obligation on the designer to create the website, according to the company's specifications and the designed/developer is certain to have correct instructions to ensure that the project is delivered on time and in budget and remains profitable.

Below are some key points:

•What is to be created: the contract should set out clearly, in sufficient detail, the company's requirements in relation to the website development, in terms of a functional and performance requirements and in terms of the design website (whether this is video, images, music or text). The agreement should clearly state who is responsible for ensure that legal requirements to which the company is subject are identified and address. This will ensure that the website designer takes them into account when designing the site. Such legal requirements include (i) access requirements under disability discrimination legislation, (ii) consent requirements under data protection legislation and/or the requirements of distance selling legislation (iii) information provision requirements and (iv) E-privacy directive recent changes reflecting the use of cookies.

•Ownership of what is developed: The company will want to ensure that if it develops any specific features or applications that differentiate the site or any design or other material, it owns all rights in them. The type. of intellectual property that apply to various website elements are mainly copyright. By law, the first creator of the materials (i.e. the designer or its consultant, sub-contractor etc who created the materials), will be the owner of the copyright in such materials (text, images, music, software, trade mark) unless it has signed an agreement transferring such rights to the company. The company by ensuring that it owns or has the right to exploit the copyright and related rights in all aspects of the web pages (including the overall design, any specially written text or graphics, and the coded version of the pages), can then transfer the website to another designer/developer to complete the project where, for example, the current designer/developer is not performing, use it as leverage to increase the value of its company or seek investment. Intellectual property rights are assets of the company even if they are "intangible" or as I would say very often "invisible".

In most cases, there is no reason why the designer should not agree to transfer ownership of the IPRs developed specifically for the company, or to license such rights where the designer is not in a position to grant an outright transfer (such as where third party works are included in the site content). However, the designer should ensure that it does not transfer to the company ownership of any intellectual property in any underlying software of the designer not specifically developed for the company but needed to operate the website. In such a case, the designer will grant a licence permitting the company to use the relevant works in the operation of the website. However, the company must be careful to ensure that it obtains all the necessary rights so that it is not restricted in the operation of the website (whether by territory, time or other restrictions).

•Timetable: the company should seek to ensure that the designer is contractually bound to meet key milestones, in particular the date for launch of the site and what are the remedies in the event they are not met.

•A budget and payment options: need to be agreed at the outset as costs will vary depending on the complexity of the proposed site, the types of graphics required and so on and this very often will be the first point where a dispute may start between the parties. Payment may be on a fixed-fee or time-and-materials basis (or a combination of both)

•Acceptance tests: the company will want to satisfy itself that the website performs on the designated servers in accordance with the company's functional and performance specification, and can deal with anticipated usage levels.

•IPRs infringement. The company should insist to receive from the designer/developer some protection against claims that any content or software produced by the designer in the course of the development of the site infringes the rights of third parties. This could arise either because the designer inadvertently uses material it has developed for (and assigned to) other customers, or where it seeks to incorporate third party works in the design (such as photographs, video clips or music) for which no permissions have been obtained. The company should seek such protection in the form of an indemnity (and insurance) to cover any liabilities that might arise.

•Maintenance, support and website hosting agreements. It is important to consider how the site will be maintained and updated after it has been launched, including:

•Availability on the designated server, security features, maintenance and support of the site (such as updating content or help-desk support), back-up and disaster recovery or statistics relating to usage of the site;

•Response times;

•Uptime requirements;

•Liability for website content;

•Hosting fees;

•Data collected;

•Policing content: if the site has message board or chat-room facilities in order to avoid or limit liability, it will be important to ensure that there are obligations in the agreement for the removal of infringing material from the site as quickly as possible.

Maria is founder and director of Anassutzi & Co limited a specialist legal and business strategy consultancy having previously held a number of senior positions including being partner and head of IP/IT in London. Maria speaks fluently Greek, Italian and has basic knowledge of the French language.

Maria is a seasoned multi-jurisdictional lawyer with vast experience in general corporate commercial law, specialising in intellectual property, information technology, e-commerce and outsourcing and having extensive in-house legal experience and having worked in City law firms and multinational companies.