Fixed charge package with options and recommendations

Entering contracts online There are various risks that exist in online trading which should be addressed through appropriate contract terms wherever possible. For example, the internet is transnational but in order to legally analyse any given contract it is necessary to identify which law applies to it; it is possible to address this question through standard terms and conditions. Another issue is whether sales will be made to consumers or business to business. If the former, the impact of important consumer protection legislation such as the Electronic Commerce (EC Directive) Regulations 2002, the Consumer Protection (Distance Selling) Regulations 2000 and the Privacy and Electronic Communications Regulations (EC Directive) Regulations 2003 needs to be considered. Having said this, assuming that English law can be said to apply to an e-commerce contract, much of the basic legal principles remain the same. For example, one important distinction that needs to be made for the purposes of contract formation is whether goods offered for sale by means of a website amount to an invitation to treat (which is not legally binding and requires a potential customer to first make a contractual offer) or a contractual offer (which is legally binding if accepted by a potential customer). Through appropriately drafted e-commerce contract terms it is possible to introduce certainty to the question of when an offer has been made, by whom and when it has been accepted. A famous example of what can happen when this important step is not taken involved Argos being inundated with orders for televisions that it had mistakenly priced at £2.99 rather than £299. The retailer may well have avoided a lot of the fallout from this mistake through careful drafting before the event.

Data Protection Act 1998 The processing of personal data carries certain legal obligations which must be complied with. E-commerce trading environments are highly likely to involve the processing of such data within the meaning of the Data Protection Act 1998. Broadly speaking the business responsible for such trading will be required to register as a data controller and comply with the 8 data protection principles set out in the Schedule 1 to the Act. These are: 1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless – (a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. 2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes. 3.Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. 4. Personal data shall be accurate and, where necessary, kept up to date. 5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. 6. Personal data shall be processed in accordance with the rights of data subjects under this Act. 7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. 8. Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data. Often the practical implication of this is that the consent of any customer will need to be obtained at the point of processing their details and that those details must be processed fairly and lawfully. Consent means consent to the information being used and collected for the purposes and in the manner in question. This is a complex and important piece of legislation on which professional advice should be sought by all e-commerce traders.

Domain names and trade marks Disputes about the use of domain names and about their interaction with intellectual property rights are among the most common in e-commerce. The use of a domain name itself can become the subject of dispute with a claimant asserting the right to use or stop another using that name. The defendant in such a case will often be the registry in charge of managing the use of that type of domain name (so ICANN for '.com' domain names and Nominet for '.co.uk' domain names). These e-commerce disputes may be essentially contractual (with the only legal right in issue being the right to use that domain name). Sometimes the use of a particular domain name can amount to an act of passing off or trademark infringement in the United Kingdom giving the rightful owner of the trade mark or brand name concerned a cause of action. Disputes such as this can be resolved by recourse to the dispute resolution service operated by the domain name registry (such as the Uniform Domain Name Dispute Resolution Policy or UDRP operated by ICANN) in question. In addition, the usual dispute resolution methods including litigation are likely to be considered.