Web Development Checklist

Web Development Checklist

For any website, it helps to have a checklist to ensure legal compliance and compliance with general standards. While there is no absolutely exhaustive checklist and designers and those commissioning websites should always make their own judgements given individual circumstances, the following checklist will help cover most of the important areas.

Company Information

Under consumer protection laws, websites in the UK are required to produce a minimal amount of company information to the consumer. They must also abiding by E-Commerce laws where relevant, providing sufficient prior to sale information, contact information, the physical address of the company and any other relevant information to the buyer.

Notice and Disclaimers

It is still important to ensure that that a website contains a disclaimer that clearly states the limitation to liability in the event of a dispute. In addition, it is advisable to ensure that attention is brought to the disclaimer and it is clearly visible on the site. How much can a disclaimer limit the liability of the website’s owner in the event of a dispute? Good disclaimers and notices communicate to the reader what they should and should not do with respect to reliance on the information and usage of the website in general. It is interesting to note that in the US case of Scott v Bell Atlantic Corp.,726 N.Y.S.2d 60 (App. Div. 2001), the selling business was not held liable for false or deceptive conduct, breach of warranty, or breach of contract where advertising copy on the website was found to be at odds with the disclaimer contained in the agreement on the installation of the CD.

Disclaimers are necessary and work to communicate  intentions with respect to the information and the use of the website. As such, they are an essential addition to  website. They should also be incorporated in the terms and conditions for best results.

Terms and Conditions

Most contracts in the UK can be finalised online with no physical signature from any of the parties. Online contracts are bound by the same contract law that applies to physical contracts that are made offline, and hence the elements of contracts need to be observed. A valid contract requires the following elements:

• A set of agreed terms and conditions
• Consideration – payment of some kind for the goods and services being purchased
• Offer and acceptance
• Intention to be legally bound to the terms and conditions of the contract

It is not sufficient for purposes of contract formation to simply insert the terms of the contract on to  website. Each party to the contract need to explicitly agree to the terms and conditions. Ideally at some stage of the finalisation of the sales, sellers must show the buyer a list of terms and conditions on the website and have them declare that they have agreed to these terms and conditions. Listing these terms and conditions on a separate page, such as a pop up page and asking the buyer to tick a box will bring attention to the legal enforceability and the formal acceptance of these terms and conditions.

Is it absolutely essential to show the terms and conditions to purchasers rather than just a link to a page containing the terms and conditions? Some cases have suggested that browser-wrap agreements can be deemed invalid; others have shown that they may be permitted where these links are shown to the purchaser repeatedly. Specht v. Netscape (306 F.3d 17 (2d Cir. 2002)) suggested that terms and conditions had to be made conspicuous if they were only linked to in order for a contract to be enforceable. In Ticketmaster Corp. v. Tickets.com, Inc., 2000 WL 525390, at *3 (C.D.Cal. March 27, 2000), a contract was deemed to be unenforceable because, although the terms and conditions were displayed in small print at the bottom of the page, there was no checkbox or a similar mechanism that brought these terms and conditions to the attention of the purchaser. However in another US case (Hubbert v. Dell Corp., 359 Ill.App.3d 976, 835 N.E.2d 113 (5th Dist. 2005)), it was ruled that the hyperlink to the terms and conditions was sufficiently conspicuous for it to have been brought to the attention of the purchaser. In Major v McAllister (23 December 2009, Missouri Court of Appeals), the plaintiff accessed a third-party website to find a tradesperson. Her details were submitted on a page with a hyperlink to the terms and conditions and a statement to the effect of: ‘By submitting  details, you agree to the Terms of Use.’ The US court found that this was sufficient to have brought the terms to the user’s attention and thus found the terms to be binding.

It appears that the safest course of action would be to have a check box and ensure that the terms and conditions are brought to the attention of the purchaser at some stage of the conclusion of the sales process.

Other than terms and conditions, it is important to incorporate into  contract the applicable law and jurisdiction clause. This clause specifies which jurisdiction will apply to the transaction. It ensures that there is less room for dispute in the event of a disagreement about the contract.

Intellectual Property Protection

While there is no ownership to be recognised in an idea, its expression can be copyrighted, and depending on the mode of its expression this can be copyright, trade mark, patent, design rights and others.

Other than logo or design artwork, most of  website will be protected by copyright. Unlike a patent, the owner of a copyright does not need to undergo a formal process to have the work protected. Copyright vests immediately – as a work comes into being. In the UK, the law requires that the work must be original or not have been copied. If you have photos or hyperlinks, it maybe necessary to double-check with the rightful owner to obtain permission to use these copyrighted items.

Where a website has been commissioned to be designed, the website owner should sign an agreement with the designer which explicitly states that the copyright in the website is held by the owner rather than the designer. In the absence of such an agreement, the law recognises that the designer holds the copyright to the website and not the commissioning person or entity. 

Owners of websites should ensure the observation of the intellectual property of others. Issues such as hyperlinks and framing – where someone else’s website is displayed on the website, perhaps in a window on on the website – these are all issues that need to be considered if a website is linking other websites or reproducing content from another website.

Website Design Agreement

Other matters relevant to a new website may relate to website design agreement that the commissioning company has with the web designer. Those commissioning websites will need to consider the kind of functionality to be incorporated into the website and specify this to the designer. Issues such as the possibility of additional features, ease of navigation, SEO, future website maintenance and support, speed, interactivity with potential customers, future extensions, updating content, and restricted access to certain sections on the website will need to be outlined and provided for in the contract.

Terms regarding the use of cookies may need to be included. How will marketing information be collected? How will cookies be used on the website? What will be done with respect to safeguarding the private information of web visitors? Website owners may want to incorporate a function that allows visitors to disable cookies. Generally the law requires an individual or corporateion have a reasonable reason for collecting any personal information about visitors. Website security is another important issue. If personal information from site visitors is being collected, , how will designers ensure the data is kept secure?

An agreement with wen designers should cover other factors such as hosting, statistic reporting, and finalising contracts online if the website will be selling products or services online. For accessibility concerns, it is advisable to follow the terms set out in PAS 78. Incorporating into  contract a timetable for delivery and establishing a usability testing process to ensure all aspects of the design process have been met will be useful. The contract should make clear that all copyright in the website is held by the website owner as well as warranties with respect to the expertise of the website designer.

Companies large and small will sometimes incorporate a confidentiality clause that protects any information that may have been disclosed to the designer in the process. This helps protect  reputation. Other factors to consider is any limitation of liability on the part of the designer when it comes to the website design. These should be check to ensure that the designer is held accountable to a reasonable degree, for the final product and has not been given unlimited liability with respect to the product. Before entering into a contract for web design, rights to terminate any agreement can be provided for.

In summary, for best practice website development, those commissioning the website should consider a whole range of factors before entering into a contract with a designer. They should refer to practice guidelines like PAS 78 or the W3C’s Web Content Accessibility Guidelines which will assist with defining technical requirements. Other essential elements are as well-drafted terms of use, disclaimers, and terms and conditions and protection of intellectual property must be addressed. 

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