© NATION 1 / HARPER MACLEOD 2007
WEB DESIGN
When designing your website, it is important to make sure that you are clear on who owns the intellectual property in your website. Copyright, for example, will exist in graphics and logos as well as in the overall look and feel of a site. Unless you agree otherwise, the position in law is that the designer will own the copyright.
SEARCH ENGINE OPTIMISATION
This can create legal problems if you make unfair use of another's trade mark. At one stage it was quite common for a company to use a competitor's name as a meta tag so that someone searching for the competitor's site would also be led to theirs. However, search engines quickly got wise to this and case law has suggested that such use could amount to trade mark infringement.
E-MAIL MARKETING
The key legal issue to bear in mind is compliance with the Data Protection Act and related regulations on e-mail marketing (often called the Privacy Regulations). These regulations mean that, subject to certain exceptions, you can't send unsolicited marketing material by e-mail to an 'individual subscriber' unless they have previously given consent.
The definition of individual subscriber includes sole traders and certain sorts of partnerships and their employees, so it's not always straight-forward to determine whether or not you need consent. These Regulations will also apply to situations where mailing lists are purchased.
PODCASTING
The content of your podcast may include material which is protected by copyright and which you are therefore not entitled to use without permission. For example, if your podcast includes music, you will need licences from the copyright holders. Copyright will exist in the actual sound recording being used and in the song or composition being performed. The MCPS/PRS Alliance, the collection society which represents songwriters and composers, now has a licence specifically to deal with music in podcasts.
VIRAL MARKETING
Viral marketing by e-mail can amount to unsolicited marketing and in the absence of consent could be unlawful under Privacy Regulations (see e-mail marketing). The Information Commissioner has published guidance to assist marketers, including the recommendation not to incentivise people to "tell a friend" or forward an email.
It is also suggested that if person A gives a marketer details of person B, the marketer should not just assume that it now has the consent of person B. It should seek confirmation of this from A and mention A's name when sending the marketing email to B. As with e-mail marketing generally, viral content will often be within the remit of the Advertising Standards Authority and regulated by the CAP Code.
ONLINE ADVERTISING
In general terms this is not an area fraught with legal issues. However, it is important to be clear on exactly what you are getting for your money. Do not fall for optimistic claims about how the advertising will improve your business, as such comments will not necessarily form part of the contract.
ONLINE BLOGS AND PR
The content of blogs should be carefully considered as it can create problems, such as claims of intellectual property infringement, breach of confidentiality or defamation.
In terms of manipulating blogs for PR purposes (recently coined 'flogging') the risk is currently more commercial than legal; namely the risk of adverse publicity if discovered. However, the legal position is due to change as the Unfair Commercial Practices Directive is scheduled for implementation in the UK this year and is likely to prohibit a company falsely representing itself as a consumer.
SMS MARKETING
The legal issues here are similar to e-mail marketing. Telephone numbers on their own are not considered "personal data" but if other information you have confirms a person's identity then the Data Protection Act will apply. Similarly, the Privacy regulations (as mentioned in e-mail marketing) will apply and will determine when the consent of the recipient is needed. In broad terms, if the recipient has already been given a chance to refuse to receive the type of information which you are sending, and you are contacting them regarding similar products and services which you offer, then this should comply with the regulations.
AFFILIATE MARKETING
Normally straightforward but issues can arise, usually regarding intellectual property infringement. Tesco last year successfully sued a company involved in an affiliate scheme. The company registered two websites under the scheme which displayed links to Tesco's main site. It earned 2% commission on sales which Tesco made through these links. However, Tesco then discovered the company had registered other domain names, all with 'Tesco' in the name. Using these domains took you straight to Tesco's main website, but commission was still being claimed on sales. Tesco had not approved the use of its trade marked name in these domain names, and the court agreed that this use amounted to trade mark infringement, as well as ordering the commission to be repaid.
In general terms this is not an area fraught with legal issues. However, it is important to be clear on exactly what you are getting for your money. Do not fall for optimistic claims about how the advertising will improve your business, as such comments will not necessarily form part of the contract.
ONLINE BLOGS AND PR
The content of blogs should be carefully considered as it can create problems, such as claims of intellectual property infringement, breach of confidentiality or defamation.
In terms of manipulating blogs for PR purposes (recently coined 'flogging') the risk is currently more commercial than legal; namely the risk of adverse publicity if discovered. However, the legal position is due to change as the Unfair Commercial Practices Directive is scheduled for implementation in the UK this year and is likely to prohibit a company falsely representing itself as a consumer.
SMS MARKETING
The legal issues here are similar to e-mail marketing. Telephone numbers on their own are not considered "personal data" but if other information you have confirms a person's identity then the Data Protection Act will apply. Similarly, the Privacy regulations (as mentioned in e-mail marketing) will apply and will determine when the consent of the recipient is needed. In broad terms, if the recipient has already been given a chance to refuse to receive the type of information which you are sending, and you are contacting them regarding similar products and services which you offer, then this should comply with the regulations.
AFFILIATE MARKETING
Normally straightforward but issues can arise, usually regarding intellectual property infringement. Tesco last year successfully sued a company involved in an affiliate scheme. The company registered two websites under the scheme which displayed links to Tesco's main site. It earned 2% commission on sales which Tesco made through these links. However, Tesco then discovered the company had registered other domain names, all with 'Tesco' in the name. Using these domains took you straight to Tesco's main website, but commission was still being claimed on sales. Tesco had not approved the use of its trade marked name in these domain names, and the court agreed that this use amounted to trade mark infringement, as well as ordering the commission to be repaid.
