Legal Basics for E-Commerce presented by Donya Vahidi Disclaimer - - PowerPoint PPT Presentation

Legal Basics for E-Commerce

presented by Donya Vahidi

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• This is general information only
• Not to be considered “advice”
• Not to be considered complete
• Specific situations may differ
• Consult a lawyer

Disclaimer

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Our Philosophy

An approach that we describe as Uniquely West Coast:

• Providing direct, responsive and accessible

legal counsel

• Making complex legal matters simple
• Focusing on client’s needs to get the deal

done

• Charging fairly and reasonably for our

services

At a Glance

We offers full suite of legal services to the West Coast business community:

• Over 15 practice areas covering all business

and securities related matters

• Founded in 1949, we have long lasting

relations in BC’s business, government and regulatory environment

• 48+ highly focused lawyers advising

national and international clients

• Global reach via our international affiliates

About Boughton Law

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COVID-19 Impacts on Small Businesses

• Social/Physical Distancing
• Shut down of “non-essential services”

Causing small businesses in BC to suffer financially. To mitigate the impacts stemming from Covid-19, a large majority of businesses that previously had no

• nline presence transitioned to online platforms.

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Online Business

How would you describe your “online” business?

Retail or wholesale business with a web presence Goods, services offered and/or sold online Delivered online or shipped “Brochure” sites/advertising Social media/networks Etc.

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Examples

• Restaurants offering take-out, grocery, meal + wine

deliveries

• Fitness studios offering online/virtual classes via Social

Media

• Retail Stores selling their goods exclusively through their

website (E-commerce)

• Physio-therapists offering guiding patients virtually

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It’s not that simple

• Taking your business “online” however, is not that simple.
• Business owners should be aware of the legal

requirements and implications of offering goods/services

• nline.

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Terms of Use & Privacy Policy

• The most important documents an online business must

have in place prior to launching their business online:

• Terms of Use (also referred to as ‘Terms of Service,

Terms, or Terms and Conditions’); and

• Privacy Policy

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Terms of Use

• Posted on the business website
• Purpose: to govern the relationship between the business

and the website user/ customer (a Contract)

• Must be ‘enforceable’
• To be enforceable:

– Avoid legal jargon – Website user/customer must be given notice of the Terms of Use; – Acceptance on behalf of the website user/customer

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What should be included in Terms of Use?

• Some terms include:

– Payment, price terms – Customer service/customer complaints; – Refund policy; – Shipping; – Intellectual property protection; – Referencing the Privacy Policy (related to collection of personal information from website users/customers – Limitation of liability – Governing law (BC)

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One size does NOT fit all

• Must keep in mind that the Terms of Use will also include

unique terms customized for the particular business/industry

• For example:

– Restaurants will want to contemplate food allergies and limit their liability; – Fitness studios will want to include disclaim warranties that their programs will yield results; – Health-Tech business will want to ensure their website users

• nly receive medical advice from their physicians

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Targeted Advertising

• Ensure the website users understand if visiting your

website will track their behaviour (behavioural tracking, targeted advertising)

• IT/Website Developer should be involved when finalizing

a Terms of Use

• Also to be included in the Privacy Policy

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Governing Law

• When taking your business online, website

users/customers can be anywhere in the world

• If you only offer goods/services to clients in BC – this

should be stated

• Assuming the business is based in BC – governing law

should always be BC

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Laws that affect your Business

Which law applies depends on:

Type of business Location of the business Location of the customers

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Basics of Contract Law Contract = a legally enforceable exchange of

• bligations

Offer: the web-site offers the good and/or services Acceptance: made by clicking an icon or by the act of making a purchase Consideration: Exchange of something of value

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Contract Law and e-Business

Online Contract Law Cautions:

Don’t Assume a contract on another web site will work for your site Consider jurisdiction Must be specific to your business model

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Online Contract Issues

Validity of the contract Electronic Transactions Act (BC) A valid contract can be made via an “electronic agent” (e.g. computer) No need for a physical document No need for signature Acceptance is shown by clicking Contracting with the correct party!

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Consumer Protection Law Online

Business Practices and Consumer Protection Act, 2004 (Part 4), (Division 4) Applies to transactions between individual consumers and business, for personal use by the individual Applies to all businesses, but “Distance Sales Contracts” particularly relevant to e-business Parties are not face-to-face Consumer Protection Laws protect consumers (not businesses) Not for B2B transactions

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Consumer Protection Law Online

Business must give certain information to the consumer before the sale:

• Information about the seller
• Consumer must receive a copy within 15 days

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Consumer Protection Law Online

Consumer must be able to access contract before accepting/paying Consumer must be able to correct, print, or cancel before accepting Best practice to e-mail confirmation of the

• rder to the consumer

Consequences of not complying

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Consumer Protection Law Online

General Consumer Protection laws also apply:

• Deceptive or unfair practices
• Unconscionable practices
• Misleading advertising
• Unsolicited goods or services
• Credit provisions

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Consumer Protection Law Online

In summary:

• Provide all necessary information in advance by

giving contract/purchase order

• Give access to all that before requiring consent click
• Allow opportunity for corrections, printing
• Email copy afterwards

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Privacy Laws and Privacy Policy

Become familiar with the privacy laws, particularly Personal Information and Protection Act (BC)

• Information about an identifiable individual
• E.g. name, address, marital status,

healthcare history, interests, political

• pinions, email address, etc.
• Other than business contact information

Deal with collection, use or disclosure of “personal information”

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Privacy

Collection, use, disclosure

• f PI needs

consent of individual, which may be withdrawn Consent to purpose is implied if stated,

• bvious,

reasonable State your purpose! Obtain only what you need You are responsible for keeping PI secure, preventing unauthorize d use or accidental disclosure Duty to respond to inquiries and complaints

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Privacy

Appoint a Privacy Officer (can be you) Conduct a Privacy Audit Measure your practices Develop a Privacy Policy Review Service Contracts with Third Parties

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CASL

• If any business sends commercial electronic messages to

its users, it must ensure that it complies with CASL

• Must obtain implicit or explicit consent before sending

commercial electronic messages such as emails or text messages

• Penalties for non-compliance range from $1 million for

individuals and $10 million for businesses

• Action: develop an ant-spam policy with the assistance of

legal counsel

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Takeaways

• Terms of Use drafted and tailored to your industry to

protect your business

• Privacy Policy to ensure that your business is in

compliance with applicable Privacy Laws in Canada (and potentially other jurisdictions

• Canadian Anti-Spam Legislation Policy