If you are using a screen reader here is some more information about this page. The right hand column, which comes first, contains information about the terms of services provided, contact information, and some links to articles on this site. The main column which comes next, contains short descriptions of things which may concern the operator of an e-commerce website. There is more detail about these concerns in a number of mouseovers just after each short description. Nearer the bottom of the page a proposed solution is set out. The solution which is offered is a site audit carried out by an experienced barrister. Finally a footer contains links to other parts of the site. Please let me know if any aspect of accessibility could be improved.
*Australian law? Applying only to Australian web sites.
Solicitors! Jeremy Gordon is a barrister practising in Queensland.
Non-solicitors! Legal advice is given to you as "direct access" clients under the rules of the Bar Association of Queensland. It is fully covered by professional indemnity insurance.
View the disclosures and terms and conditions which apply to all legal advice work (opens in new window).
Whether the Privacy Act 1988 applies to you
Currently small and medium sized businesses in Australia (turnover of less than $3 million) are exempt from the Privacy Act 1988. There are a few exceptions to this, most notably if personal data is collected and then sold. Australia is the only remaining country in the developed world to have such an exemption and at some time in the future it is likely that the Act will be extended to cover all businesses. The Australian Law Reform Commission has produced a strongly worded report and follow-up submissions on the subject. As a matter of good practice, many small and medium sized Australian businesses prefer to comply with the Act either formally (by going on the Privacy Commissioner's opt-in register), or to comply with guidance from their trade organisations, or on a voluntary basis.
privacy of data and privacy statements?
Privacy of data and privacy statements
If your business is covered by the Privacy Act 1988 or has opted-in to its provisions, or is complying with the Act as a matter of good practice, then it needs to apply the National Privacy Principles (NPPs) set out in Schedule 3 to the Privacy Act 1988. Basically these require that the data should only be collected fairly and lawfully (and not in an unreasonably intrusive way) and only if necessary. They also control the use and disclosure of the data, and require that reasonable steps are taken to ensure that it is accurate, secure, complete and up-to-date and that it is only kept as long as is necessary.
In the context of a merchant website, certain specific information will need to be given in a privacy statement available from the website as set out in the NPPs, and this may need to include a statement as to how the business manages personal information.
The Privacy Commissioner's website on www.privacy.gov.au (and also the Australian Information Commissioner's office see www.oaic.gov.au) has some guidance available, but in the context of merchant websites it is not complete.
cookie use and confidentiality?
Cookie use and confidentiality issues
Cookies which themselves or which together with other information are not capable of identifying someone are uncontrolled under Australian law unlike in other major jurisdictions, but a voluntary industry code applies to them.
These questions are examined in my article on this site:
are cookies lawful?.
Anybody who provides a website established or hosted in Australia needs to comply with the "provision of services" anti-discrimination laws both at national and state/territory level. These require you to take positive steps (as far as is reasonable) to ensure that persons with a disability can access the website and its products and services as fully as those who are not disabled. This requires making adjustments to the website in anticipation that it will be visited by people with various types of disability. To fail to do this may be discriminatory and unlawful under the relevant legislation.
The most common changes that are required are to ensure (as far as can reasonably be done) that the site works with the keyboard and does not need to be used with the mouse, and that all material is accessible by those with poor vision (who may use a screen reader) or poor hearing. Consideration should be given to those who need time and help to navigate around and understand the site, and to complete forms.
See my article on this site accessibility: what is reasonable?.
Worried by ..
whether any regulations covering internet sales (eg distance selling regs) apply?
Whether any regulations covering internet sales (eg. distance selling regs) apply
The only laws applying specifically to internet sales are benign ones, designed to ensure that contracts made online are valid (eg. the Electronic Transactions Act 1999 recently amended by the Electronic Transactions Amendment Act 2011). The Australian Consumer Law (formerly the Fair Trading Act and various State and Territory laws) applies to all merchant sales. And the privacy laws and any legislation specific to your industry have to be complied with.
In 2006 the Treasury published "The Australian Guidelines for Electronic Commerce", and the ADMA has published its Online Marketing Guidelines. Although neither of these have legislative force, they do set out best practice as to timely disclosures prior to sale and the establishment of proper complaints procedures.
For the gaps in the law as to disclosures and my recommendations see disclosures required by law.
the correct application of gst to suit the customer's location and type?
Application of gst
The application of gst to internet sales is not obvious or straightforward, and changes from time to time. Currently, the way it is applied depends on the nature of the goods, services or rights which are supplied, the physical location of the purchaser, whether the purchaser is a non-resident of Australia and whether the effective use or enjoyment of the supply is to be outside Australia.
For a fuller explanation see my article:
internet sales: the application of gst.
Not sure about ..
general contract terms?
General contract terms
Your general terms and conditions of sale will need to fit exactly and properly with your site's products and procedures, and with your privacy statement. To be relied upon under the Australian Consumer Law in the Competition and Consumer Act 2010 they should be legible, presented clearly and expressed in reasonably plain language. They should also be readily available to your purchaser, and to comply with ordinary contract law this must be before the contract is made. They also must not contain any unfair terms which might fall foul of the Australian Consumer Law, nor attempt to exclude any liability or guarantees contrary to that law. And they should deal properly with the opportunity now given to purchasers to correct input errors after purchase (Electronic Transactions Act 1999 as amended by the Electronic Transactions Amendment Act 2011).
licence terms and ip issues?
Licence terms and ip issues
If you are selling any items or services which grant a software licence, or permission to copy amend or use a work, then you will need to bear in mind the copyright laws which apply, and whether the law relating to confidentiality should be invoked. It is important to be precise whilst at the same time covering all possible actions which could damage your business.
Liability limitation or exclusion
Terms and conditions which attempt to limit or exclude liability need to be carefully drafted to avoid being declared unfair under the Australian Consumer Law in the Competition and Consumer Act 2010. They must be precise and cover all possible eventualities which would damage your business.
A review of your site's procedures, contracts and disclosures and a certificate of compliance with Australian internet law from a highly experienced barrister.
ask for a quote to check your site and processes for compliance including disclosures, privacy, confidentiality, accessibility and your privacy statement (this will depend on the size and complexity of your site)
ask for a quote to check your terms and conditions of sale
please email me in the first instance
this service is of course in complete confidence
this is usually a 7-14 day turnaround from start of work
legal advice will be provided to you as a "direct access" client under the rules of the Bar Association of Queensland and is fully covered by professional indemnity insurance