Many people do not take legal considerations into account when creating a website, app, or platform. There are many factors to consider, and the legal aspects are often neglected. In some people’s view, legal considerations are either unimportant or 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 have a website created by a designer or developer are horrified to learn that, unless the parties specifically agree otherwise, they will not be the owners 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 website. 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 for creating 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. Sometimes a client does not pay (for whatever reason), and the designer or developer cannot recover the money. This can have a significant impact on any business. Many designers and developers believe that if the client pays for website design or development services, the client owns the website (and its source code). 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 assume the obligation to build the house if your obligations and liability are not strictly defined?

Problems often arise from the parties’ failure to properly define their respective rights and obligations in suitably drafted and binding contracts. People often believe that signing legal agreements will only hinder the process of creating a website and that there is no value in 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 problematic 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:

Domain names

It often happens that domain names are registered in the name of the designer or developer, rather than the client. The client has paid for the domain name; therefore, the client should be the owner or registrant. If this has already occurred, the designer or developer should transfer the domain name to the client.

Specifications

Before beginning design or development, the parties should conduct a scoping exercise to determine the website’s functional and technical specifications. The purpose is to establish what 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 ensure that the client gets what they were expecting. A change control procedure should be agreed upon to deal with any changes. Issues such as fees, limitations of liability, and ownership of copyright in the specification should be addressed.

Timetable

The parties should agree on a timetable according to which things will happen.

  • 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.

Ownership

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 upon the client’s payment of the final amount.

Payment

The parties should agree on the fees and charges for the design or development, as well as 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.

Content

Designers or developers should be looking to protect themselves from the risks associated with clients providing them with information or content to include on the website that they are not entitled to use, or that might be illegal, defamatory, or otherwise infringe 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) helps Google find your website more 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 search engine robots can accurately index the website.

Analytics

An analytics tool should be included on the website to track visits.

Hosting

The design and hosting of a website are distinct subjects and should be addressed in 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.