Website Matters

Information to be Provided I

Under the Companies Act, companies must identify their company registration number, place of business, registered office and address on all of their websites.

An information society service is any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service. Information society services include distances sales or  services provided over the internet.

Information service providers must give the required information in clear and comprehensive terms in advance of any sale or service.  The information, must be easily, directly and permanently accessible to the recipient of the service. This information must be provided to consumers and non-consumers.


Information to be Provided II

The following information shall be provided by a information service provider in a manner which is easily, directly and permanently accessible to the recipients of the service and to the Director:

  • the name of the service provider,
  • the geographic address at which the service provider is established,
  • the details of the service provider, including his or her electronic mail address, which allows him or her to be contacted rapidly and communicated with in a direct and effective manner,
  • details of how natural persons can register their choice regarding unsolicited commercial communications; these should be prominently displayed on the service provider’s website and at every point where natural persons are asked to provide information at the service provider’s website (for example a registration form);
  • where the service provider is registered in a trade or similar public register, the trade or other such register in which the service provider is entered and his or her registration number, or equivalent means of identification in that register,
  • where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority,
  • where the service provider undertakes an activity that is subject to value-added tax, the registration number assigned to that provider in accordance with section 9 of the Value-Added Tax Act;
  • in addition to other consumer protection, where the relevant service refers to prices, those prices are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs.

Where the service provider is a member of a regulated profession, it is to provide particulars of

  • any professional body or similar institution with which the service provider is registered,
  • the professional title of the provider and the Member State where it has been granted, and
  • a reference to the applicable professional rules in the Member State of establishment and the means to access them

Information Required about Business

The requirements, whic are in addition to other requirements apply to information society providers.An information society service is any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service.

The required business information includes:

  • name of service provider together with the physical and electronic address
  • where the service provider is registered, details of the public register in which it is registered
  • registration numbers or equivalent means of identification
  • where the service provided is subject to an authorisation scheme, the particulars of the relevant scheme
  • where the services are provided by a member of a regulated profession, details of any professional body or other institution
  • relevant codes of conduct /profesional rules to which the business is subject and information on how they can be consulted electronically;

Contract Information

The required contract information to be furnished by  information society service providers  includes

  • details of how natural persons can register their choice regarding unsolicited commercial communications; these should be prominently displayed on the service provider’s website and at every point where natural persons are asked to provide information at the service provider’s website (for example a registration form);
  • in addition to other consumer protection, where the relevant service refers to prices, those prices are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs.
  • whether the contract will be filed and whether it is accessible
  • languages for the conclusion of the contract;

Where a service provider sets out prices they must clearly and unambiguously state whether they are inclusive of tax and delivery costs.

In the case of telephone communication, the identity of the supplier and the commercial purpose of the call must be made clear at the beginning of the conversation.


Commercial Communication Content

An unsolicited commercial communication by an information service provider established within the State shall be identified clearly and unambiguously as such as soon as it is received by the recipient by stating that it is an unsolicited commercial communication.The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable,

Details of how natural persons can register their choice regarding unsolicited commercial communications shall be provided; these should be prominently displayed on the relevant service provider’s website and at every point where natural persons are asked to provide information at the provider’s website (for example a registration form).

Promotional offers, such as discounts, premiums and gifts shall be clearly identifiable as such, shall comply with any enactment for the time being in force relating to such activities and the conditions which must be satisfied in order to qualify for them shall be easily accessible and be presented clearly and unambiguously.


Sale of Goods and E-Commerce

Where the site sells goods or provides services, extensive information is required under the distance selling legislation and other consumer protection laws. See the chapter on Information in the E-Commerce Category in relaiton to the information to be provided in a distance sale. See the Categories on consumer contracts and consumer protection in relaiton to the general obligations that apply.

Under E-Commerce legilsation, the service provider must comprehensively, unambiguously and prior to the receipt of the service indicate:

  • the different technical steps to follow to conclude a contract;
  • whether or not the contract will be final and whether it will be accessible;
  • the technical means for identifying and correcting input errors;
  • the language offered for the conclusion of the contract;
  • whether it is bound by any codes of conduct.

Inertia selling is prohibited. Inertia selling is the supply of goods and services to consumers beforehand where such supply involves the demand for payment.  The absence of a response does not constitute consent and would not, in any event, constitute a contract.


Concluding a Contract

In respect of a contract to be concluded by electronic means a provider shall indicate to the recipient of the relevant service, on the placing by the recipient of the order or as soon as practicable thereafter, which relevant codes of conduct, if any, the provider subscribes to and information in relation to how those codes can be consulted electronically.

In relation to contracts to be concluded by electronic means, the terms and general conditions provided by the relevant service provider to the recipient of the service shall be made available in a way that allows the recipient to store and reproduce them.

The obligations regarding the conclusion of contracts etc. do not apply in a case where the parties to the contract are not consumers, if the parties agree that they shall not apply in respect of the contract, or  if the contract is to be concluded exclusively by exchange of electronic mail or by equivalent individual communications.


Placing of Orders

In contracts concluded by electronic (means where the recipient of the relevant service places his or her order through electronic means)

  • the relevant service provider shall acknowledge the receipt of the order of the recipient without undue delay and by electronic means,
  • the order and the acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them.

In relation to contracts concluded by electronic means, the relevant service provider shall make available to the recipient of the service, appropriate, effective and accessible technical means allowing him or her to identify and correct input errors, prior to the placing of the order.

The above obligations do not apply in a case where the parties to the contract are not consumers if the parties agree that they shall not apply. The obligation do not apply to contracts concluded exclusively by exchange of electronic mail or by equivalent individual communications.


Website Terms of Use

It is usually desirable that a website define its terms of use, regardless of whether the user and site owner enter a contract for the use of the site. The terms of use should define the parameters of permitted use of the siter. Thy may set out consents and limits in relation to the use of intellectual property on the site. They may set out its policy and intent in relation to a range of matters such as links.

Digital content provided online through paywalls sites should be protected by licensing conditions and terms of use. There will usually be a contract for the use of the site or the non-public parts of the site. The licence may incorporate or be part of the general terms and conditions for use of the site. They may be separate.

The permitted use is likely to be limited and restricted by the terms set out in the agreement. The provider will wish to restrict the commercial reuse of the material.  The licence granted may, for example, be for a single user for private or business purposes. Multiple user licences may be available but are likely to incur higher fee level.

The website provider will usually seek to disclaim liability to legal exposure insofar as possible, by a notice or th econtract terms. Disclaimers of liability seek to avoid liability for loss and damage that might otherwise arise. Their effect will depend on the general principles of contract and tort and the nature of the liability concerned.


Privacy Policy

Data protection law requires that an entitly which proposes to hold personal data, obtain clear consent to its collection. It must  specify and obtain consent in relation to the use to which the personal data may be put. It must comply with the data protection principles which have the force of law. See the categories on data protection law.

The website should have a privacy policy which explains the entity’s policy and approach to the collection, storage and use of personal (and other) information in connection with the website. It should cover information collected, how it is used, marketing uses, commitment to security and data subject’s rights.A multilevel privacy statement may be appropriate with broad data protection principles set out with more detail accessible.

The terms on which personal data is gathered and used must be transparent, clear and set out in plain terms.  The data subject should consent clearly to the privacy policy.

The data subject (the person to whom the information relates) must give informed and explicit consent. Appropriate tick box, opt-in and opt-outs will be required in relation to the acquistion and use of data, such as for future marketing communications.   A specific opt-in consent is usually required.


Cookies

Cookies are files containing information that may be placed on the user’s computer or other device when visiting a website. They may be temporary for the purposes of the browsing session after which they may be deleted. Some cookies are permanent and track references for future use, unless and until they are deleted.

Cookies may be placed by the website operator or by other parties through the website. These are third-party cookies. Some cookies are necessary to allow the functioning of the website, such as in the use of an e-commerce site for the purpose of a sale.

Cookies may gauge use of websites and monitor. These are sometimes referred to as persistent cookies. Functionality cookies allow the tracking of user choice and preferences. Targeting cookies may be used to track behaviour online to enable advertisements to be targeted.


Cookies Policy and Consent

Websites must obtain consent to the use of cookies under the e-privacy legislation. They are treated in the same manner as personal data.  This is the case, regardless of whether the cookies collect personal data. See the Privacy category in relation to the treatment of cookies.

The Cookie policy should set out iclear information about cookies, cookie choices and the use of cookies. The website should specify the type of cookies and whether the cookies personally identify users. They should set out types of cookies collected and their use.

The user should consent to the use of cookies. See the section on Cookies in the Privacy category. The Data Protection Commission has published guidelines.

The privacy cookie policy should adopt with any change in circumstances. If the service provider wishes to collect or use information differently, this must be clearly flagged provided and the policy must be amended.  The distinct informed separate consent may be required in relation to the alteration of a policy personal data


References and Sources

Irish Books

EU Data Protection Law Kelleher & Murray         2018

Information & Technology Communications Law Kennedy & Murphy      2017

Social Networking           Lambert            2014

Law Society PPG Hyland Technology & Intellectual Property Law                2008

Information Technology Law in Ireland   2 Kelleher & Murray       2007

Data Protection Law in Ireland: Sources & Issues 2 Lambert 2016

Privacy & Data Protection Law in Ireland               Kelleher               2015

Data Protection: A Practical Guide to Irish & EU Law         Carey    2010

Practical Guide to Data Protection Law in Ireland A&L Goodbody 2003

Contract Law in an Electronic Age Haigh 2001

Contract law McDermott 2nd ed 2017

EU and UK Texts

Cover of Getting the Deal Through: e-Commerce 2018 Robert Bond 2017

EU Regulation of e-Commerce: A Commentary Edited by: Arno R. Lodder, Andrew D. Murray 2017

Butterworths E-Commerce and IT Law Handbook 6th ed Jeremy Phillips 2012

Internet & E-commerce Law, Business and Policy Internet & E-commerce Law, Business and Policy 2nd ed Brian Fitzgerald, Anne Fitzgerald, Gaye Middleton, Yee Fen Lim, Timothy B Beale 2011

E-Commerce and Convergence: A Guide to the Law of Digital Media E-Commerce and Convergence: 4th ed Edited by: Mike Butler 2011

Blackstone’s Statutes on IT and e-commerce Blackstone’s Statutes on IT and e-commerce 4th ed Edited by: Steve Hedley, Tanya Aplin 2008

E-Commerce Law E-Commerce Law Paul Todd 2005

A Practical Guide to E-Commerce and Internet Law 2nd ed Osborne Clarke 2005