Online business is booming in a COVID-normal era. With low entry costs and a worldwide audience, operating your business solely online can be an attractive option. However, it is important to be aware of the legal considerations for e-commerce and online business. This article sets out the top five legal considerations for online businesses to help you stay compliant.
1. Are you misleading or deceiving consumers?
Online businesses must ensure they are not engaging in misleading or deceptive conduct in breach of the Australian Consumer Law (ACL). This includes any misleading information or advertisements about the price, quality, nature, appearance, shipping and delivery times of your goods and services. It also includes any conduct which may mislead consumers about their right to a refund, repair or replacement under the consumer guarantees.
Importantly, your intention as a business is not taken into consideration when establishing misleading and deceptive conduct. This means that you may still be liable to pay penalties for breaching the ACL even if you did not intend to. Accordingly, businesses should ensure they are accurately describing and advertising their goods and services online.
2. Do you have a Website Terms and Conditions?
Online businesses often overlook the importance of having a detailed Website Terms and Conditions. As the main source of your consumer traffic, your business website should contain a Terms and Conditions to help manage your legal liability and risk. This is a legally binding contract between your business and the users of your website. It commonly includes clauses about:
- User rights and permissions
- Proper use of services
- Intellectual property, and
3. How are you using the data of customers and clients?
- The types of personal information collected and stored
- Reasons for collecting personal information
- How an individual can access their information; and
- How their information may be used or disclosed
4. Is your intellectual property protected?
Intellectual property includes things like copyright, trade marks, patents, designs, trade secrets and other confidential information. By protecting your intellectual property, you can help prevent competitors from copying your branding or stealing important identifying aspects of your business. Online business can protect their intellectual property by:
- Registering their trade marks, such as their business name or logo
- Including intellectual property provisions in their legal agreements, such as in their Website Terms and Conditions or employment contracts
- Engaging a trade mark watching service and ensuring your rights are constantly monitored for infringements
5. Are you sending spam?
Online businesses often rely on email and text message marketing to promote their goods and services. However, it is important that businesses are not sending unsolicited commercial electronic messages in breach of the Spam Act. To ensure compliance with spam laws, businesses must have the following:
- Consent: Businesses must ensure that consent has been given by the individual to receive marketing messages. This may be express consent or inferred if they have provided their email or phone number to you.
- Identification: Businesses must clearly identify themselves as the sender of the email or message, including their business name and contact details.
- Unsubscribe facility: Businesses must provide an accessible way for people to unsubscribe to receiving marketing messages or emails from your business. This may be through an unsubscribe link or an opt out text code.
Online businesses should ensure they are legally compliant and doing their best to minimise their legal liability. This involves:
- Providing accurate and up-to-date information on their websites and advertisements
- Registering trade marks and protecting intellectual property
- Ensuring they are not sending spam to clients and customers
How can Gladwin Legal help?
Gladwin Legal are experts in advising businesses. We can help with:
- Lodging your trade mark registration application
- Providing tailored advice on consumer and compliance laws
- Monitoring your trade marks for brand infringements
This article was written by Ruth Ong.