The following questions and answers contain general information about the relevant laws of the Hong Kong Special Administrative Region. None of these questions and answers constitutes legal advice. Always consult a suitably qualified lawyer on a specific problem or matter. Bird & Bird assumes no responsibility for the information contained below and disclaims all liability in respect of such information.
Are contracts which have been entered into on-line legally binding?
Unauthorised linking to a third party website may amount to copyright infringement. Accordingly, in order to avoid such infringement, the following guidelines should be followed:
I own a large business and keeping paper documents is very costly for me. Can I keep paper documents electronically?
Yes. The Electronic Transactions Ordinance provides that information can be retained electronically if the information:
1. remains accessible, i.e. it can be used at a later date;
2. the electronic record has been kept in its original form or in a form which can be demonstrated to represent the information originally generated, sent or received and
3. the origin, destination, date and time of the electronic record can be ascertained.
I have hired a website designer to create my website. What issues need to be covered in my contract with my website designer?
A website design contract should, amongst other things, contain the following:
Specifications - specifications outline the specific requirements of your website, e.g. ability of your website to process on-line contracts; the background will be a particular colour, etc. This enables the web designer to have a "goal" which he must achieve in completing your website;
On-going reporting - the website designer should be required to provide you with progress reports and an opportunity for you to review the ongoing design work to ensure that the website is being designed in accordance with the specifications;
Acceptance testing - the contract should provide for acceptance testing of the website once it is completed. If the website fails the acceptance criteria contained in the specifications, you should be entitled, by reserving this right in the contract, either to require the website designer to change the website so that it will pass acceptance testing, or to accept the website as it is but at a reduced price or to reject the website altogether;
Intellectual property rights - the website designer should grant non- exclusive licences to you (with the right for you to sub-licence such use to others) to (1) use and modify the software used in the website; and (2) use the copyright contained in the website. There should ideally be an escrow arrangement in place which allows you to access the website software in specified situations, e.g. if the website designer becomes insolvent. If new software is being written specifically for you, then the contract should state expressly that the copyright in the new software belongs to you;
Competitors - the website designer should be prevented from "copying" your completed website and using this for its other customers, particularly your competitors.
I have established a website and would like to create links between my website and third party websites. What kind of issues should I be aware of?
Unauthorised linking to a third party website may amount to copyright infringement. Accordingly, in order to avoid such infringement, the following guidelines should be followed:
Permission - you should obtain written permission from the third party website owner before you establish a link. Third party websites may contain copyright material not owned by the website owner. There is therefore always a risk that you will be infringing another party's copyright or trade mark rights. In order to avoid this, you should try to obtain confirmation from the owner of the third party website that nothing on its website breaches any other party's intellectual property rights;
Disclaimer/Buffer Page - You should create a separate buffer page containing a disclaimer when linking your website with a third party website. A buffer page will indicate that the user is leaving your website and will make clear that you are not responsible for and do not endorse any information contained on or accessible from the linked pages;
Deeplinks and Framing - All links should be to the home page of the third party website unless specific permission has been obtained from the website owner to link to other pages. You should not create "deeplinks" into a third party website which effectively bypass the home page of the third party website and the important notices contained thereon. You should also not "frame" materials from a third party website, i.e. create a link to the website and then present the third party material in such a way that, when viewed, it is framed by your own advertising and other materials. Framing may constitute trade mark and copyright infringement and may breach other rights of the third party website owner.
The link - when you do establish an actual link to a third party's website, this link should not contain the third party's trade mark unless express written permission has been obtained. However, it is permissible to create a link which requires the user to click on the URL of the third party website. once the user has clicked onto the link, a buffer page should appear on the screen so that the user is not granted direct access to the third party website.
I am concerned that other parties may copy the information contained on my website. What can I do to protect my intellectual property rights?
The contents of a website should be protected by copyright provided that the work is original, i.e. has not been copied from another person. Copyright will, in most cases, subsist automatically upon creation (although some countries do require registration). If you have created the information on your website, you should be the copyright owner of the work. Accordingly, any person who copies, broadcasts or adapts your work without your permission will be infringing your copyright. You should alert third parties to your copyright by putting a copyright notice on each of your webpages with an express statement that the copying of material is prohibited. If you are using a trade mark for your website to market your goods or services, you should insert the symbol "! (if the mark is unregistered) or the symbol � (if the mark is registered) after your trade mark. It is advisable to apply to register your trade mark in all the countries in which you will be offering your goods and services. Generally, trade mark rights are territorial and applications must be filed for each country. Please refer to the Intellectual Property Law Explained Section.
Users to my website are required to provide personal information. I have heard of the Personal Data (Privacy) Ordinance. What should I do to make sure that I comply with the provisions of this Ordinance?
The provisions of the Ordinance are very complex and require tailored advice. However, at the very least, you should ensure that your website contains a Personal Information Collection ("PIC") statement and a Privacy Policy Statement ("PPS").
Briefly, the PIC statement should be prominently displayed and easily accessible. Each form used to collect personal data online should include a PIC statement or a link to a PIC statement.
The PIC statement should identify:
1. the data user collecting the information and details of the relevant contact person;
2. the purpose for which the data is collected and how it will be used after collection;
3. state the classes of transferees to whom data may be transferred after collection and whether data will be transferred to places outside Hong Kong.
4. state the data subject's right to request access to and correct personal data retained by the data user and how such requests can be made.
The PIC statement should detail the security measures implemented on the website to ensure that the information is not accessible by third parties. The PPS is a general statement of the data user's privacy policy followed by details of its policies relating to:
1. The kinds of personal data collected and the purposes for which they are collected;
2. Collection of personal data without the data subject's knowledge (if any)
3. Policies in relation to accuracy and retention of personal data;
4. Disclosure practices
5. Whether or not personal data will be used for direct marketing.
I am concerned that computer viruses may affect my business. How can I minimise my liability to my suppliers / customers if I fail to meet my contractual obligations as a result of computer viruses?
Firstly, adopt employee guidelines relating to the use of IT to minimise the risk that e-mail borne viruses are activated by employees opening e-mails or attachments to e-mails. These employee guidelines may include a requirement that employees refer all suspicious e-mails to the IT department before they are opened.
Secondly, your standard terms and conditions with suppliers and customers should contain a clause which excuses your non-performance of your contractual obligations, e.g. failing to meet delivery deadlines, as a result of a computer virus. However, careful drafting of such a clause is imperative.
