Legal Issues Relevant to the Quality of the Website - Essay Example

?LAW A Legal Issues Relevant to the Quality of the Website In the modern business environment, the use of World Wide Web and internet is ubiquitous. The business environment is very competitive and companies are forced to adapt to latest technologies, as well as emerging business trends in order to survive and improve their profitability. The use of internet has gained much currency in the recent past especially for commercial purposes. Internet technology has been widely adapted and accepted as one of the main components of marketing strategy in business (Miller, 2006, p. 10). Synergy Ltd, the company in which I am a systems manager does not want to be left out of the internet technology and its benefits. Therefore, the company has sought to develop a website in order to attract clients in the wake of the economic downturn. The website will provide relevant contact information, technical information, and a discussion group allowing registered users to discuss problems, and allow them to estimate the charge for recovering information. The company has sought the services of a developer to develop its website. There are legal issues that are relevant to the quality of website delivered by the developer and to protecting the company from problems. These issues include the following: private and security issue and legal liability issue. According to Baumer, Lyengar, & Moffie, (2003, p. 23), the issue of privacy and security is one of the main issues that surround creation of websites. Websites are crucial for storing and selling of information that benefits both the businesses and the consumers. However, there is a concern among businesses and consumers regarding their personal safety and privacy of their personal and other sensitive information. This concern is compounded by the ease with which information may be cross processed and collected from websites. In the United Kingdom, the issue of website security and privacy is covered under the Data Protection Act 1998 and Privacy and Electronic Communications Regulations 2003 (Defago and Bockanic, 2006, p. 205). These Acts requires that cookies should be signposted on the websites. In addition, they require that visitors of the websites should be allowed to refuse or accept their personal details to be collected and used in the websites. Also, the Acts requires that personal information that is collected concerning individual visitors should be used or processed in accordance to the principles and provisions set out in the Privacy Regulations and the Data Protection Acts. More importantly, these Acts seek to protect businesses in an event that commercial relationships become ruined, as was demonstrated in the case of Ashton Investments v OSJC (2006). In this case, OSJC (a Russian company) employed spyware to the computer system of its former business partner, Ashton Investments, to hack illegally private information relating to the litigation between them. In the light of these two Acts and the need to protect the business in an event of ruined relationship between the company and its business partners, the developer of the website should ensure that the website has a high level of privacy and security. In regard to the issue of legal liability, it is important to point out that the utilization of Wide Web has prompted businesses to venture in unexplored business frontiers. As such, they are more likely to be exposed to legal risks. This issue has been exacerbating by the fact that most laws relating to cyberspace in both criminal and civil dimensions are still in comparative legal infancy. The legal liability issues relating to websites are copyrights, infringement of copyrights, website development contracts, appropriation of names, and defamation (Baumer, Lyengar, & Moffie, 2003, p. 24). In addition to under the Data Protection Act 1998 and Privacy and Electronic Communications Regulations 2003, Digital Economy Act 2010 makes legal provisions for website and internet. The Act has provisions that seek to deter internet crimes as well as providing punitive measures to the offenders. In Godfrey v Demon Internet Limited (2001), it was noted that cases relating to copyrights, infringement of copyrights, website development contracts, appropriation of names, and defamation are serious crimes. For example, the decision arrived at stated that any inappropriate content in the website should be removed immediately after it has been discovered or if there is a revelation of defamation. Incase that is not done, the owner of the website will be held liable for contributing either directly or indirectly to its publication. It is against this background that the developer of the company’s website should take into account all the legal liability issues. The developer should adhere to all copyrights requirements; and, publish true information only to avoid defamation cases. Additionally, the website developer should avoid using a name or caricature or picture likeness of another person without their permission so as to avoid liability that may arise from name likeness or appropriation of name. Moreover, since the developer is a non- employee, the company should enter into website development contract with the developer so as to ensure that ownership of the website and its content is vested in the business (Defago and Bockanic, 2006, p. 209). The company had previously considered using a web services development company to develop its website. However, the company was not happy with their standard terms and conditions, prompting them to plan to use a local freelance web developer. In the light of this, it is important to assess any differences that could arise if the company used the web services development company rather than the freelance developer. One of the differences that may arise will be in regard to how the project will be undertaken; whereas web services development company work in an organized way and have huge infrastructure and a pool of human resources to work on the project, freelancers work alone as they do not have a team. As such, web services companies may develop the website in a more efficient and effective manner compared to the freelance developer. Also, due to limited capacity, freelance developers may not deliver work of utmost quality, as well as of latest technology. As noted, using freelance web developers may result to a number of shortcomings especially those which are quality-related. The shortcomings may result to violation of key provisions of Privacy Regulations and the Data Protection Acts thus compromising privacy and security of the website, as well as resulting to legal liability issues. In order to handle potential problems that may arise by using private developers, the company should ensure that the local freelance web developer has adequate knowledge, skill, and experience regarding web development. Also, the company may need to employ the services of another freelance web developer with more expertise to verify whether the website developed has attained the required standards for web development. 1 B Negotiation Approach Since the company will use non- employee to develop its website, negotiation will be crucial in coming up with web development contract. Negotiations should be in such a way that it leads to equitable contract that is beneficial to both the company and the web developer. The copyright law states that in the absence of an agreement between a company and a non- employee web developer should, the ownership rights of the website is automatically vested to the person who created it (Glaze, 2008, p. 51). Therefore, the first step of negotiation should be geared towards an agreement that the ownership of the website and its content be vested to the company. The company should prepare adequately and appropriately for the negotiation because its outcome has significant impacts to the company and its future interests. Prior to negotiation, the company should draft a negotiation plan that will guide the negotiation process. The issue of ownership, platform selection, timing, and price should be among the key issues that negotiation should address (Glaze, 2008, p. 59). The approach of the negotiation will be based on the aforementioned issues; the company will ask for a portfolio from the freelance web developer. Also, before the actual negotiation begins, the web developer will be asked to provide samples of his previous works. After previewing the portfolio and samples, the actual negotiation will begin. I will begin by providing standard terms to the freelance web developer so as to initiate the negotiation process. The standards set will relate to the issues of ownership, platform selection, timing, and price. Negotiation will proceed gradually by addressing each issue at a time. We will begin by addressing ownership issue to ensure that the website and its contents are owned by the company. Secondly, we will address the issue of pricing; I will negotiate the basis of pricing, whether it should be on a retainer basis or early payment such as per hour basis paid monthly (Brenner, 2003, p. 103). Since website development is never “finished” and needs regular updates (such as once in four months), I will negotiate on how the updating process will be handled and how it will be paid for. Therefore, we have to agree on redesigns pricing and circumstances under which the developer will be paid. Thirdly, we will address the issue of platform selection; here, I will make certain platform decisions before the development commence, such as the platform on which the website will reside like Windows or UNIX. Also, I will make a decision if the website can be accessed by certain browsers or optimized for a particular one. Fourthly, timing will be considered because the Web is quickly and constantly moving, hence the need to have timing that customers are comfortable with (Glaze, 2008, p. 56). This approach is the most appropriate because it leads to a win-win situation as both the company and the freelance web developer will come up with mutually-beneficial agreement. This is important for the long- term success of the company. In addition, this approach will help protect the company from potential problems relating to website. The identified issues will go a long way in cushioning the company from privacy and security, ownership, and legal liabilities issues that are related to the website. For example, by reaching an agreement after negotiation that ownership will be vested to the company, the company will be in a good position to handle legal liability issues such as defamation, copyright, and intellectual property issues among others (Glaze, 2008, p. 192). Also, issues such as pricing and updates will help the company to pay the “right” price for the service, rather than the “wrong” price that may be detrimental to the company’s profitability both in the short and long term (Brenner, 2003, p. 18). Along with that, the issue of platform selection and timing are important in ensuring customer satisfaction, thus avoiding problems such as complaints from customers regarding the website. 2 Invention Law Laws have been drafted to protect inventors and authors who create inventions and works that would benefit the society; most if not all constitutions across the world have provided for patent and copyright protection. Since the company, through the company’s technician, has designed an electronic device and associated software that can connect mobile phone to a computer to allow the capture of data for forensic analysis, it is important that this invention be protected by the law. Inventions are protected under patent law which confers a monopoly of the new invention (a process or a product); patent confers the owner with exclusive right that prevents third parties from using, making importing, selling, or offering for sale a product without the consent of the owner (Daehwan, 2002, p. 188). Therefore, how can patent law help protect the company’s invention? Firstly, the company should make an application for the patent as required by the UK’s patent law. The UK Patents Act 1977 makes a provision that a patent for a particular invention should granted to the inventor(s), primarily. Prior to doing so, though, the company should conduct a search so as to determine whether there is a room for patent protection. It should be noted that patent law in the United Kingdom and the European Patent Convention are interpreted to have similar effect (Daehwan, 2002, p. 193). Hardware and software work in tandem and therefore, it is important that the company seek long- term protection of hardware (electronic device designed) and software. After meeting the requisite requirements for patenting the hardware and software, the company should ensure that the invention is protected abroad as well because the requirements of patents may differ from country to country. Long term protection may also call for specification of the core part of the software invention such as an algorithm, a network, processing of data, an apparatus, or the software itself (Mueller, 2003, p. 110). As stated, the company will be seeking a loan from a bank or private investor to commercialize the device. In this regard, the following issues are important: first, the company must be able to show that the invention has a market potential and will result to higher revenues that exceed expenses incurred in obtaining it (Daehwan, 2002, p. 195). During the discussion with the bank, a clear market potential must be demonstrated. Another important issue to be discussed is the extent of funding like whether the funding will cover patenting the invention abroad and undertaking of experiments. Moreover, the discussion should focus on whether the invention should be commercialized as a startup or established one, or whether it should be licensed to a startup or a established company, based on the analysis of the market potential. There may be issues that may arise from the fact that the company technician who helped develop the prototype has left the company and is working for a competitor. The main issue that may arise in such circumstances is that of invention ownership (Mueller, 2003, p. 97). In this respect the company may not experience serious issues because the employment contract and the patent laws favor the company. Most employment contracts and some provisions of the patent law require that invention made by an employee should be assigned to their employer. However, if during the development of the prototype there was an agreement about the invention being jointly owned, then it means that the company and the employee who has left the company and is working at the competitor will jointly own the invention. That notwithstanding though, the invention will not be attributed to the company of the competitor and as such, the competitor should not have direct benefits of the joint patent ownership of one of its employees (Mueller, 2003, p. 156). 3 A Legal Issues Relevant to Indecent Images of Children While recovering data from a crashed hard disk belonging to a famous pop star, the company has discovered what appear to be indecent images of children in the Internet cache. This situation is covered under the Protection of Children Act 1978, Sexual Offences Act 2003 and other related laws. These Acts are designed to protect children against sexual exploitation and child pornography. The Acts defines the following offences: to possess indecent images with the intention of either distributing or showing them; to distribute or show indecent images; advertising for distribution or showing indecent images; and making or taking indecent image of a child (Gillespie, 2005, 430). In this situation the following facts are evidently clear: possession of indecent photographs, possibility of either making or taking indecent images of children. These offences are punishable under Section 62 of the Coroners and Justice Act 2009; the Act creates possession of prohibited image of a child as a new offence that can carry a punishment of up to three years (Bill et al, 2009, p. 428). Also, the evidence of Truecrypt installed in the pop star’s computer is may tend to give credence to the possibility that, indeed, the pop star could be making and/ or taking indecent images of children and that the software seek to prevent “external” parties from accessing the images taken or made. Besides, it may lead to an assumption that the pop star uses it to protect access to the original file of the images. In R v Fellows (1997), it was held that indecent photographs included the copy of the same. Therefore, if a computer file contains invisible data which can be converted using technical means into a print and screen image, then the original copy can prove that an indecent image offence (Bill et al, 2009, p. 425). This is because it is the original image or a copy of it that makes available the images for viewing. As such, the court held that the nature of the copy is not restrictive because the data available in computer file is a representation of the original image, even if it is in another form (Gillespie, 2005, 439). Therefore, there seems to be a high possibility of linking the client (famous pop star) with the offences relating to indecent images of children. 3 B Expert Witness In some cases, the services of expert witness are required especially in cases that involve the area of specialty of that particular witness. They are termed as “expert witness” because of the specialized knowledge and experience that they possess in a specific subject matter in a given case (Poynter, 2007, p. 4). Their opinions are valued by the court as more sufficient because they have knowledge of a certain field by virtue of their training, education, skill, and/or experience. The lecturer has been approached to be an expert witness because of her research into cryptography. In advising her, I will first explain the role of expert witness as entailing expression of an opinion; she will be required to give expertise opinion on cryptography in separate civil and criminal cases and most likely be required to help with the interpretation of the opinion or evidence (Poynter, 2007, p.11). Since it is true that she possess excellent knowledge and experience in cryptography, I will advise her to take the role. In that respect, I will advise her to prepare adequately for court in order to ensure that the opinion she gives and interpretation she makes are relevant and thus, help the court to deliver factual evidence which elucidates and expedites the verdict (Kirsty, 2011, p.516). Additionally, I will advise her to give the opinion that she considers correct and avoid giving contradictory and irrelevant opinion, as well as wrong interpretation because it may jeopardize the outcome of the case which may result to arising of liability from her evidence. I will caution her against giving wrong evidence and opinions because it may result to liability on her part. In most cases, expert witnesses are charged for perjury for false testimony, as well as negligence in the testimony preparation (Kirsty, 2011, p.516). As observed in R v Sally Clark [2003] in the UK Court of Appeal, Professor Sir Roy Meadow gave irrelevant opinion which had determinative effect upon court evaluation. However, it should be noted that in most cases, expert witnesses enjoy immunity against civil suit arising from their participation in legal proceedings. Although in Jones v Kaney [2011], the immunity was removed over alleged expert witness’ negligence (Kirsty, H, 2011, p. 517-8). Bibliography Baumer, D.L., Lyengar, R. & Moffie, R.P. 2003, "Legal liabilities of website operation and Internet privacy issues", Internal Auditing, vol. 18, no. 5, pp. 22-27. Bill, H et al, 2009, “Offences involving indecent photographs and pseudo-photographs of children: an analysis of sentencing guidelines”, Psychology, Crime & Law; Vol. 15 Issue 5, p425-440 Brenner, R, 2003, Pricing Web Services, Brenner Information Group. Daehwan, K, 2002, "Patent and Copyright protection of Computer Programs", Intellectual Property Quarterly, No. 2, p. 188-211 Defago, S and Bockanic, W. 2006, “Legal and Ethical Issues in the Operation of a Business Website,” The Marketing Management Journal, Vol. 16, Issue 1, p. 204-215. Gillespie, A, 2005, “Indecent Images of Children: The Ever- Changing Law,” Child Abuse Review; Vol. 14 Issue 6, p430-443 Glaze, J, 2008, The Ultimate Guide for Web Site Owners, Mostcool Media, Inc. Kirsty, H, 2011, “The Abolition of Expert Witness Immunity,” Cambridge Law Journal; Vol. 70 Issue 3, p516-518 Miller, N. 2006, Website development: A practical approach to the legal pitfalls: Part 1, Institute of Credit Management Ltd, Stamford, United Kingdom, Stamford. Mueller, J, 2003, Introduction to Patent Law, Aspen Law & Business. Poynter, D, 2007, Expert Witness Handbook, Para Publishing. Read More