Many people do not take into account the legal considerations when creating a website. There are many things to take into account and often the legal aspects get neglected. In some people’s view the legal considerations are not important or are too complex. Some believe that traditional legal concepts do not apply when creating a website. They are sometimes viewed as unnecessary, especially if there appears (at the beginning) to be a good relationship between the client and the designer or developer. Well, let me tell you from experience – often things turn out badly – it is worthwhile looking at some of the legal considerations at the beginning of the project.
Most clients who are having a website created by a website designer or developer are usually horrified to learn that, unless the parties specifically agree otherwise, they will not be the owner of the newly created website. After spending what can amount to hundreds of thousands of Rands the client does not by default (according to our law) own the web site. Even the most experienced business people get caught! In the excitement of becoming part of the knowledge economy and the information age, the caution that would normally be applied to a normal business situation is thrown to the wind. The legal considerations relating to the creation of a website are critical and must be addressed.
the default position is that the designer or developer owns the copyright in the website
On the other side, website designers or developers often do not think to protect themselves contractually when agreeing to design or develop a website. It sometimes happens that a client does not pay (for whatever reason) and the designer or developer is not able to recover the money from the client. This can have a significant impact on any business. Many designers and developers believe that if the client paid for the website development or design services, then by default the client owns the website (and the source code relating to it). This is simply not true.
An analogy can be drawn to the designing and building of a house. Would you let someone build you a house on your property without entering into a contract with them stipulating who shall own the house? Alternatively, would you like to take on the obligation of building the house if your obligations and liability are not strictly defined?
Problems often arise through the failure of the parties to properly define their respective rights and obligations in suitably drafted and binding contracts. People are often of the opinion that the signing of legal agreements will only hinder the process of creating a website and that there is no value added by entering into agreements. This is not true! In fact, a good agreement can add tremendous value. At the very least, the process enables the parties to focus on potentially problematical areas and to deal with these in advance (not later in arbitration or a court or when the parties no longer trust each other).
The following are some of the legal considerations that should be taken into account:
It often happens that domain names are registered in the name of the designer or developer and not in the name of the client. It is the client who has paid for the domain name and therefore the client should be the owner or registrant. If this has already taken place, then the designer or developer should transfer the domain name to the client.
Before beginning with the design or development, the parties should carry out a scoping exercise to determine the functional and technical specifications of the website. The purpose of this is to establish what it is that will be designed and developed. The resulting specifications will protect the designer or developer from a “shifting of the goal posts” during the actual design or development and ensures that the client gets what they were expecting. A change control procedure should be agreed to deal with any changes. Issues such as fees, limitation of liability, and ownership of copyright to the specification should be dealt with.
The parties should agree on a timetable according to which:
- the client will provide the necessary information
- the designer or developer will have the beta and final versions of the website available
- the period during which the client will perform acceptance testing
- the date by which the website should finally be accessible on the world wide web.
As the creator or author of the website the designer or developer is (by default) the holder of the copyright and therefore (unless the parties agree to assign the relevant copyright in the website from the designer to the client) the designer or developer is the owner of the website. The assignment of the copyright usually takes place on the payment of the final amount by the client.
The parties should agree on the fees and charges for the design or development and the payment terms. It is in the client’s interest to pay only once they have accepted the website. However, the parties often agree to a staggered payment. For example, 50% upfront on signature of the agreement and 50% on acceptance of the website.
Designers or developers should be looking to protect themselves from the risks associated with clients giving them information or content to include in the website that they are not entitled to use – or which might be illegal, defamatory, or otherwise infringes the rights of third parties.
Search engine optimisation
The website must be “effective”. Effective in this case means Google loves it. It should therefore be the responsibility of the designer or developer to “optimise” the newly created website for search engines. Search engine optimisation (SEO) means that Google can find your website easily. SEO is the Internet equivalent of signage. After all a great website is useless if no one visits. It has been stated that 30% of websites are completely invisible (Google knows they’re there, but cannot read them). For example, the designer or developer should include the correct meta tags so that the robots of search engines will accurately index the website.
An analytics tool should be included in the website so that visits can be tracked.
The design and hosting of a website are two different subjects and should be dealt with in two separate agreements. A designer or developer might not provide hosting services or a client may wish someone other than the designer or developer to host the website.