Expanding overseas
If you’re expanding your business overseas and have a website, you may wonder whether your website needs to comply with overseas laws. You may have a privacy policy, copyright notice or terms and conditions that comply with Australian law. But you now have customers from other countries that use your website to buy your goods. Does your website have to comply with the laws in the countries where they’re from? Here, we’ll discuss how you can make sure that your website is compliant when you expand overseas.
Do you need to make your website compliant with overseas laws?
If you want to be completely legally foolproof, you would need to make sure that your website is compliant with the laws in every jurisdiction in the world. This of course, is highly costly and impractical. You would need to hire a lawyer for every country. Furthermore, this would not be necessary if your website is not used by a lot of people in each country.
There are more practical and effective strategies for minimising legal liability when you expand overseas. These include a strong governing law clause in the terms and conditions of your website. Additionally, you may adapt some policies for the jurisdictions that your customers are mainly from.
Governing law clause
A governing law clause in your website’s terms and conditions can be effective in avoiding legal liability overseas. The clause should basically state that Australian law governs the terms and conditions of your website. Additionally, it should state that if a legal dispute arises, the parties must deal with this dispute in your jurisdiction (e.g. Australia, New South Wales).
You should make sure you obtain the consent of the visitors of your website for this governing law clause. You can achieve this by requiring them to tick a box saying that they agree to the terms and conditions of the website (which includes the governing law clause). This can be shown before they enter your website or make a purchase on your website.
This effectively creates a contractual agreement between your customers from around the world and your business. The customers agree that the law governing any legal disputes between you and them is Australian law. However, you should note that some Courts in different jurisdictions may make your governing law clause void. This may be due to the fact that their own domestic laws don’t recognise such clauses. Therefore, you may wish to seek advice from a lawyer as to whether your governing law clause will be accepted in another country where your business operates.
Adapting your website for some jurisdictions
As a back-up to your governing law clause not being accepted, you may adapt your website for different jurisdictions when expanding overseas.
You should analyse the data on where your overseas customers are mainly from. If there are a sufficient number of people accessing your website from a different country, you may consider adapting your website or creating a version of your website that complies with the laws in that country. This is particularly the case if you have a management team or an actual brick and mortar store operating in another country. If this is so, you should have a version of your website’s terms and conditions that complies with that country’s laws.
Do I need a completely new website policy for each country?
Notably, there aren’t generally major discrepancies between copyright, privacy and consumer protection laws, especially amongst other English-speaking countries. This means that you can probably keep most of your website policies as is, with just a few tweaks.
In relation to privacy law however, while Australia’s laws are some of the strictest in the world, there are some key differences between major jurisdictions that you should be aware of. These include:
- UK and EU: Under the General Data Protection Regulation (GDPR) and the ePrivacy Directive, you must obtain the consent of your website’s users before you use ‘cookies’ to track their internet activity. Cookies basically store data about an user’s activities that allow advertisers to target users with specific and customised ads. If the user does not give consent, you cannot store data from their cookies, although some exceptions apply. In Australia, websites need only state how you will store and use the cookies. You don’t need to obtain consent unless you are collecting sensitive information like passwords and postcodes.
- US: under the Children’s Online Privacy Protection Act 1998, websites are not allowed to collect information from children under the age of 13.
Additionally, US copyright law provides wider exceptions to copyright infringement. This is in the form of the US’ “fair use” exceptions versus Australia’s more narrowly defined “fair dealing” exceptions.
To make sure your website is fully compliant with an overseas jurisdiction, you should hire a lawyer from that jurisdiction to advise you on any legal issues with your website.
Conclusion
If you’re expanding overseas, it’s important to consider whether your website is compliant with the laws of that country. While a governing law clause can help to make sure any legal disputes are resolved in accordance with Australian law, this may not be enough. Particularly, if your business is operating out of another country, you should seek advice from a lawyer from that jurisdiction. They can advise you on any legal issues with your website in accordance with local laws.
