IT&IP Law: Brick & Mortar to eCommerce: Is your website compliant?

In a very competitive economic climate, with competitors just a convenient click away, businesses can hardly afford not to be online in order to promote their brand, grow sales and reach customers that were previously out of reach.

Your business’s website is the first place users will go to in order to learn more about your business; it is the public face of your business. It is not only important to ensure that the website has a good look and feel and is professional, or that it ‘fits in’ with your target market, but it is also important to know that your website actually needs to comply with a few laws. Just like we have to comply with certain laws in terms of our “brick-&-mortar” businesses, there are various laws governing eCommerce from a South African perspective including, the Electronic Communications and Transactions Act 25 of 2002 (EC Act), the Consumer Protection Act 2008 (CPA), the Promotion of Access to Information Act 2013 (PAI), the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RIC Act), the Companies Act 2008 and the Value Added Tax Act.

Certain of these laws don’t only tell you what terms and conditions and other information need to be presented on a website, but also in which manner the reference to your website’s T&Cs must be presented and in what format the T&Cs should be made available to the user.

Consequences of non-Compliance 

Although non-compliance may result in penalties against your business or prosecution under the various laws, which will most definitely result in reputational damages, we have seen that non-compliance directly affects the operations of the business and results in unnecessary costs and the possibility of customer dissatisfaction. Here is just one example that demonstrates what could happen if your business does not comply with the disclosure requirements under the ECT Act:

If a supplier fails to comply with the disclosure provisions and not allow the consumer to review the entire electronic transaction or the consumer is not able to correct it or be able to withdraw from the transaction before placing any order, then the consumer may cancel the transaction within 14 days of receiving the goods or services under the transaction”.

Over the next 2 months we will translate theory into practice and address the following Website Compliance topics:

  1. Local is Good: a cut and paste job will not do – translate the right law into plain English T&Cs;
  2. Location (position) location (position) location (position)
  3. Contract formation:
    • how to be in control of your transaction as a business owner;
    • what is a browsewrap agreement;
    • how will the user ‘sign-off’ on the transaction?
  1. Third Party Risks: linking to and from your website, User Generated Content and third party service providers (i.e. payment platform providers);
  2. Intellectual Property (IP): rather protect than to infringe a third party’s IP rights;
  3. Data Protection – is this really applicable to a business’s website?

Benefits of being Compliant 

The biggest benefit of being compliant is, apart from not being liable for penalties or possible prosecution, that a compliant website is the first step in building a trusted relationship with the users of your business’s website.

Website Compliance audit

At De Klerk & van Gend, it is important for us to ensure that our clients’ websites are compliant. To encourage this, we will perform a free WebSite Compliance audit (valued at R2500) for each client that follows the following simple steps:

  1. Read the article
  2. Click on the button – “Website Compliance” at the bottom of the article
  3. An email will open up with the heading “WebSite Compliance audit”
  4. Complete the questions on the email;
  5. Submit the email to us.

NB: We will commence with the Website Compliance audit for your business after we have received 2 (two) emails from your business email address (i.e. your name@[your business website domain].com/co.za etc.) within 2 months of this article’s publication.

Author: Gerrie van Gaalen (IT&IP Department)

For more information, contact our IT&IP Law specialist
Tel: 021 914 4020
Email: gvgaalen@dkvg.co.za

This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.

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