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Creating a business website. What you need to know.

When creating a website for your business for the first time there will always be some legal considerations that should form part of your website planning and design. Starting a new business can be an exciting time and sometimes a little overwhelming particularly if you are not legally advised from the outset, on some of the basics when thinking about your business website.

Seeking some legal assistance from the outset doesn’t need to be costly and can ensure you avoid any need for dispute resolution in the future.

To ensure every success in the development of your online presence, it is important to have at least a privacy policy, website terms and conditions of use and service / sale / client specific terms or an agreement dependent on whether your business sells goods or provides services.

Also, being aware of protecting the intellectual property of your business, relevant overseas considerations and how the Australian Consumer Law works with respect to your business, are all important and can have severe legal and business implications if not dealt with properly.

1. The Basics

While it may seem straight forward there are the basics to include about your company on your website

  • Full company name
  • Company registration number and ABN
  • What product or service your offer
  • Geographic address of your business
  • E-mail address for “contact us”
  • Contact phone number
  • Operating hours of the business

2. Protect your domain

When setting up your business online, it’s a good idea to start by researching possible online trading names. Your major considerations should be that:

  • The name is not already taken: Check that the domain and traditional company name are both available and not already registered.
  • The name you choose is memorable, short, easy to remember and not easily misspelled
  • Make sure your name is not associated with a negatively viewed business or industry, like gambling or inappropriate material.
  • Remember that cybersquatting (registering a domain name with a bad faith intent to profit from another’s trademark or goodwill) is illegal.
  • Register your business’ name on popular social media sites such at Twitter, Facebook and Instagram. Even if you aren’t planning on using these social channels to promote your business initially, you may find that they will become useful tools to market your business in the future.
  • Apply for federal trademark protection for your domain once it’s been registered. Doing so strengthens your position if a dispute ever arises in the future while simultaneously preventing others from registering the same name with the government.

3. Incorporate your business

There’s an important decision you need to make about whether to incorporate your company or just register your business name. If you decide to register a business name it does not protect your business name from being used in another Australian State or Territory. A business name does not have legal status and you may be exposed if you plan to operate your online business within other States.

Please don’t hesitate to contact our team of Commercial lawyers for information on how to incorporate a company or register a business name here or phone on +61 3 9822 8588.

Please note you are not required to register for an Australian Business Number (ABN) if you register an Australian domain name. However, all businesses that have revenue greater than a certain minimum amount must register for GST.

4. Create a Privacy Policy

Privacy Policy is essential and is a legal document published on a website that sets out the way in which your online business gathers, manages, stores, discloses and uses personal information. This policy  mitigates risk and builds trust with your website visitors acting as a sign of legitimacy for your business.

In Australia, a Privacy Policy should comply with Australian Privacy Law in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs).

  • If your business collects any personal information from customers (names, email addresses, etc.), you may want to consider drafting a Privacy Policyfor your site. The policy itself should, at a minimum, clearly state which information you collect, who you share that information with, and how you will use the information.
  • A clear-cut privacy policy adds credibility for your business and can prove useful in the event any legal action is taken against you or your business. Legally speaking, it helps your business to demonstrate that you clearly communicated your policy to customers and that you followed your policy carefully.
  • A privacy policy is critical even if you’re not asking for phones numbers or addresses, your website is no doubt recording the visitor’s IP address.
  • A privacy policy also helps protect against reputational damage too.

A link to your website’s privacy policy should always be provided in the footer of your sitemap design so that it appears (and can be accessed) on every page of your website.

5. Website Terms, Conditions & Disclaimers

Depending on the nature of your site, including use terms and conditions for your site is generally advised for the purposes of communicating to visitors the rules and regulations for using your website.

The nature of the terms and conditions will vary depending on the specifics of your site, for example, if you sell goods, you may want to list the terms of sales through your site including how you handle returns and/or goods lost or damaged after shipping. Such terms and conditions can also include:

  • The protection of intellectual property;
  • Things that are prohibited when using the website;
  • Disclaimers;
  • Limitations on your liability;
  • Use of downloadable files and other information on the website;
  • The status of links to other websites and

Disclaimer distancing yourself from material and commentary provided by users that is infringing or defamatory material to your site.

6. Sale Terms and Conditions or Client Service Agreement

If your online business sells products, you must have terms and conditions with the consumer about the sale.

Sale terms and conditions allow consumers to review the process of your business before they commit to a purchase. These terms include information such as:

  • The products you sell and how you sell them
  • Payment procedures
  • Availability of products
  • Delivery of products
  • Cancellation policies
  • Consumer guarantees
  • Return, refund and exchange policies
  • Disclaimers and indemnity
  • Limitation on liability
  • Any other laws that apply to sales and your online business
  • The jurisdiction of transactions

Product versus a service based business.

If you offer services rather than a product, your business’ agreement with the client will often include information such as:

  • The description of services your online business provides
  • Payment and associated terms
  • Expectations of your client
  • Transferring intellectual property
  • Termination of agreement
  • Limitation on liability
  • Dispute resolution

Laws governing your business and its online presence in the international market and associated transactions are important to consider. As your online business may be accessible globally, it is important to be aware of overseas laws that may apply to your business. Having a well-drafted set of terms and conditions can assist in avoiding conflicts that may arise internationally.

7. Exercise caution if using intellectual property

Intellectual Property can include the name of your business, trademarks, copyright and more.

  • If you’re using images, logos, video, designs, etc. on your website, and you don’t own them, proceed with caution.
  • Copyright protection extends to any creative work the moment it is created whether or not it contains a notice.
  • Through registering your trademark in an element or elements of your business’ branding, this grants you exclusive use of the mark, the right to licence or sell the mark and ensures no one else can legally benefit or use your mark.

If you would like to discuss any aspect of your business including assistance in setting up your business website and associated policies and terms or you need any other form of legal assistance, please don’t hesitate to contact any one of our experienced Commercial & Disputes lawyers on +61 3 9822 8588 or via email here.

Insight written by Bianka Duzelovski

Contacts

Meghan Warren

Principal

Meghan Warren

Principal
LL.B GAICD B.Bus (FinPlan)
Meghan is one of the few lawyers in Australia admitted in the State (Victoria) and Federal jurisdictions of Australia, and as an Attorney at Law to the New York State Bar in the United States.

Rosy Roberts

Principal

Rosy Roberts

Principal
LL.B (Hons) B.A GAICD
Rosy has extensive experience in Litigation & Alternative Dispute Resolution having represented clients in all Victorian State Courts and the High Court of Australia. She is also a VCAT appointed Administrator.

Kristy Muhlhan

Principal

Kristy Muhlhan

Principal
LL.B (Hons) GRAD DIP. L.P., GAICD.
Since 2014, she has been an owner and Principal of the firm and has mastered a broad range of essential commercial and business skills which go hand in hand with the work she does for...

Elizabeth Ong

Special Counsel

Elizabeth Ong

Special Counsel
LL.B.(Hons) CLP GDLP
Elizabeth is committed to providing world class, comprehensive commercial solutions and corporate advice tailored to the best interests of her clients. She is fluent in written and verbal English, Mandarin, Cantonese, Hokkien and Malaysian languages.

Helen Mastos

Special Counsel

Helen Mastos

Special Counsel
LL.B, BA
Helen is a Special Counsel with over 25 years of experience in Commercial Litigation and Commercial Law.

Bianka Duzelovski

Lawyer
LL.M, LL.B BMS
Bianka has an extensive background both in private practice and as internal counsel for a number of high-profile building and commercial businesses so provides the perfect balance of legal skills to our Commercial, Disputes and...

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