Website-law.co.uk

Many websites incorporate data obtained from other websites. It is sometimes thought that, where the data obtained is not protected by copyright (e.g. data consisting of postal addresses arranged alphabetically) there are no legal problems. This is however a mistake: the collection and re-use of such data can present significant legal risks.

As a matter of English law, the key risks arise under:

• the database right legislation;
• the law of contract; and
• the Computer Misuse Act.

Database right

A database is defined in the Copyright Designs and Patents Act 1988 as “a collection of independent works, data or other materials which - (a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means.”

In general terms, databases falling with this definition will be protected by database right if there has been “a substantial investment in obtaining, verifying or presenting the contents of the database.”

Database right will be infringed where a person extracts or reutilises all or a substantial part of a protected database without the consent of the database owner.

The law on database right is in a state of flux, and unfortunately the scope of the right is not entirely clear. Nonetheless, it is clear that the harvesting of data from other sites can in some circumstances constitute an infringement of this right.

Law of contract

Website terms of use sometimes expressly prohibit the collection and republication of data from websites.

If you are considering extracting data from another website for use on your own website, you should check their terms of use of that other site. If they expressly prohibit what you intend to do – and if the website owner can establish that the terms are enforceable against you – then you may be found liable for breach of contract (or licence) if you go ahead.

Computer Misuse Act

The Computer Misuse Act provides for a specific offence in the case of unauthorised access to a computer:

“(1) A person is guilty of an offence if— (a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer; (b) the access he intends to secure is unauthorised; and (c) he knows at the time when he causes the computer to perform the function that that is the case.

(2) The intent a person has to have to commit an offence under this section need not be directed at— (a) any particular program or data; (b) a program or data of any particular kind; or (c) a program or data held in any particular computer.

(3) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.”

It may be argued that, where a website’s terms of use prohibit data data mining, then such activities could fall within the Computer Misuse Act. This could lead to civil liability (under the tort of breach of statutory duty) as well as criminal liability.

To the best of my knowledge, this kind of argument has not yet been tested in the UK courts.

In deciding what to include in your standard email footers, there are two kinds of legal issue:

• what must be included; and
• what inclusions are desirable.

The main kinds of potentially desirable inclusions are email disclaimers and confidentiality notices.

Mandatory inclusions

Sections 349 to 351 of the Companies Act 1985 (as amended) require that the following information be included in business emails sent by a company:

• the name of the company;
• the registered office of the company;
• the place of incorporation of the company; and
• the registration number of the company.

In addition, “investment companies” must state in their emails that they are investment companies; and limited companies that are exempt from the obligation to use the word “limited” as part of their name must state that they are limited companies.

The easiest way to ensure that this information is included in emails is, of course, to have it automatically inserted through a standard footer.

Please note that special rules apply (or may apply) which are beyond the scope of this note:

where an email is sent for marketing purposes (whether solicited or unsolicited);
in relation to emails sent by regulated industries and professions (e.g. the financial services industry or legal profession); and
where you monitor the emails of employees and other personnel.

Email disclaimers

Many businesses include disclaimers of liability in their email footers.

These may seek to exclude or limit the sender’s liability in relation (amongst other things) to:

• claims by third parties concerning the email;
• malicious software transmitted with the email;
• “accidental” contracting by junior staff;
• negligent statements made in the email; and/or
• other actionable email content.

The law relating to email disclaimers is not as clear as it might be.  However, what is clear is that very broad exclusions of liablity will not usually protect the email sender in the event of a court case.  The kind of disclaimer appropriate to a particular business will depend upon the nature of that business (and the nature of the emails sent by that business).  For this reason, you should seek professional assistance to draft an email disclaimer.

Confidentiality notices

A second category of potentially desirable inclusion is a confidentiality statement

A confidentiality notices will specify that the information contained in the email is (or may be) confidential, and may specify that the recipient of the email should not without the sender’s permission disclose any confidential information received.

Such notices serve to reinforce the obligations of individuals and companies under the general law of confidence.

Arguably, it is better to include confidentiality notices at the top of an email, rather than in the footer – but for obvious reasons few businesses do this as a matter of course.

In any event, the law relating to email confidentiality notices is as uncertain as that relating to email disclaimers, and they should not be relied upon in relation to the disclosure of valuable confidential information (which should be covered by a confidentiality agreement or non-disclosure agreement of some kind).

The publication of website content – whether textual, audio, video, or other content – can be unlawful in two main ways.

It can breach the criminal law; and it can give rise to civil liability.

Breaches of the criminal law may result in prosecution, and a successful prosecution may lead to a fine or even imprisonment.

Civil liability is different. Where content gives rise to civil liability, the person (or company or other organisation) that has suffered as a result of the publication may have a right to bring proceedings. The remedies in such proceedings will usually be damages (or an account of profit) and/or an injunction. A successful claimant will also expect most of their legal costs to be met by an unsuccessful defendant.

Examples of criminal (or potentially criminal) content include:

- Obscene or indecent material
- Material published in contempt of court
- Material published in breach of data protection, racial or religious hatred, or official secrets legislation

Examples of content that may give rise to civil liability include:

- Defamatory material
- Material infringing another person’s copyright (or other intellectual property rights)
- Material infringing another person’s rights of confidence or privacy

Those responsible for moderating internet forums, blog comments or other website features involving user generated content should be at least passingly familiar with each of these areas of potential liability.