You can take a horse to water, you can't make it read the terms and conditions ...
This post focuses on UK and European law, the author of this post is not a lawyer, always seek professional legal advice.
Tonight's speaker at the Liverpool Geekup event was Graham Ross, an eloquent funny character with a wealth and depth of legal knowledge specialising in the technology sector.
Graham Ross, is in practice both as a mediator and as a solicitor. Graham has over 20 years experience in IT and the law, is the author of legal applications software (including he original version of the QUILL solicitor's accounts and time recording package) and was the founder of LAWTEL, the popular web-based legal information update service.
Graham is a member of the United Nations Expert Panel on Online Dispute Resolution and speaks regularly at international conferences on the impact of the law on the Internet and e-commerce and on technology in the judiciary and Alternative Dispute Resolution. Graham was host of the 5th International Conference on Online Dispute Resolution held in Liverpool, UK, in 2007 in collaboration with the United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP) .
As a solicitor Graham has considerable experience in clinical negligence and in major high profile personal injury and product liability group actions, including the successful action against the UK Government for HIV infected haemophiliacs (which he founded and led) and was a member of the steering committee that negotiated the largest ever group settlement, being for miners made ill by coal dust inhalation).
http://v2.theclaimroom.com/images.lxp?host=25&filename=tmedrwhoarewe.html
The beginning of the session focused on Mediation and what it means in today's legal structures.
The difference between Arbitration (which is bad by the way!) and Mediation (which is good!) is summaries below, you really need to see Graham speak though to get a real understanding for what it's all about.
| Arbitration | Mediation |
| A Neutral party imposes an outcome | Parties decide outcome |
| Restricted on outcome by law | No restrictions on outcome |
| Focuses on the past relationship between parties | Focuses on the future relationship between parties |
| Works "outside the head" | Works "inside the head" |
| | |
If you're looking for some quick legal advice OUT LAW is a great site which has a bunch of information, check out an extract from it's front page here: -
OUT-LAW has 8,000 pages of free legal news and guidance, mostly on IT and e-commerce issues. These issues can affect any organisation, and OUT-LAW is as much for those in a software start-up as it is for the compliance team at a bank. If and when you need further advice, we hope you'll choose Pinsent Masons, the law firm behind OUT-LAW.COM.
For legal details check out the site http://www.out-law.com/
One area which Graham focused on was that issue of jurisdiction. Ensure you define the jurisdiction of both the laws which will apply and in which countries courts they will be heard in. Be aware of the Brussels Regulation when trading in Europe. It means that the purchaser of goods can hold proceedings in their own country irregardless of the contracts.
Harmonised - All EU countries have adopted the law
Unharmonised - Individual member states choose how and when to adopt the law
Many companies are being setup in Luxemburg in Europe as a tax haven, but it has implications for consumers too. Delaware in the USA is used for the same reasons.
Another area Graham focused on were the distance selling laws and how to minimise their impact, there's a big distinction between consumers and business buyers, and a large number of the laws only apply to consumers. So one tip Graham had was get buyers to agree that they are business users when buying things from you, that way they waive a number of protections put in place when they are consumers, perhaps even offer business users a discount to encourage this even more. Whatever you do, at the very least get customers to confirm if they're a consumer or a business buying from you. Consumers have seven days to return things if it's stated correctly, and if not, they have THREE MONTHS !
On the majority of web sites bad wording (or positioning) of terms and conditions means they aren't binding. The Date of which a contract is entered into is vitally important
Beware the Information Commissioner and Setup privacy policies as well as ensuring Data Protection compliance - delete old data if you have to.
Finally, when something which is a copyright infringement or litigious, the first step by the offended party will be a cease and desist letter - act on it! Remove any defamatory content immediately, it's not worth the hassle!
Cheers,
Phil.
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