10 tips on Internet law for entrepreneurs
By reading the following text, the reader will gain useful knowledge on the legal use of the Internet. The law does not have to be a hindrance in this respect – but, of course, only if it is properly “tamed”. This text should make the issues of consumer protection, GDPR and copyright more understandable.
One of the first steps of running an on-line business is, of course, starting it and, even before that, deciding on a business name. However, it sometimes raises reasonable doubt concerning the risk of inadvertently stealing an existing name, which may result in a legal dispute.
It is worth knowing that, to a large extent, you can prevent this from happening by checking the business name – or even a logo – on the Internet. The most useful tools are the search engines available on the Polish Patent Office website or its European equivalent – the European Union Intellectual Property Office.
Both of them allow you to check to see if your idea is already taken, in what kind of industry, and whether you should think about something else. What’s more, the latter also allows you to search for images, so it can be useful if you want to compare logos.
They also may be useful when you are the first who wants to reserve something. This, of course, involves some costs – higher for the EU-wide business and for reserving a larger number of classes or, simply speaking, branches.
Exercise
Verify if you could use the names of the Barbie doll or Disney characters. Check if it is possible in the case of a slight change in the name or for a different branch.
Who is a consumer and entrepreneur and what is the difference between them?
If you sell something on the Internet, you usually do it as a company or an entrepreneur. That means you are a professional with a deep knowledge of your industry. So, you also can cheat. You could possibly use the other person’s lack of knowledge, try to scrounge something off them, or mislead them. The law wants to protect this person.
This person is a consumer, an ordinary, everyday person. Someone who knows nothing and, therefore, can make a mistake or be cheated. This is the reason why the on-line shop call-to-action button says ‘order with obligation to pay’ or that checkboxes cannot be pre-ticked.
This is also this person’s “fault” and that they have two weeks to change their mind and, if you do not inform them of their rights, such rights will apply for a longer period. The consumer has a right to withdraw from a distance and off-premises contract. You are not allowed to include certain elements, so-called abusive clauses, in your terms and conditions in a contract. And, of course, you should allow the consumer the possibility to make a given type of complaint.
Exercise
Visit the UOKiK (Office of Competition and Consumer Protection) website. Verify what the Office pays attention to and how it may relate to your business idea.
Who is the possible third party of the Internet transaction, apart from the consumer and entrepreneur?
It is expected that, in January 2021 there will be another, kind of “middle” group of subject entities – this is a kind of ‘an entrepreneur who will be given some of the consumer rights’.
How can you check whether an entrepreneur is given consumer rights in accordance with the new Act? The criteria seem to be obvious – it is the Polish classification of economic activities, known as PKD. Companies declare the types of branches they work in – according to the PKD list. As we already know who we are dealing with, let’s check what he or she may expect – what are the three rights that are given to the new, middle, subject entity?
Firstly, it is the right to withdraw. You have 14 days to send back the shoes you ordered. The “enterpreconsumer” will be allowed to do the same – without having to give any reason. Secondly, abusive clauses. These are the extremely disadvantageous terms and conditions that are imposed by the entrepreneur on the consumer. For example, forcing the consumer to go to a particular court in a particular place or to waive certain claims. Thirdly, the entrepreneur will be held liable under the warranty to the new entity for the quality of the product that was sold.
Extra knowledge
If you want to know more about how the introduction of the new subject entity affects the documentation of on-line business owners, please see the following video: www.youtube.com/watch?v=SIKnlytPhLI&feature=emb_logo
What are licences and what types exist?
In a nutshell, a licence is official permission to use the work under the terms and conditions specified in a contract. A licence agreement may stipulate the scope, place, time, or rules on the use. It may also limit licensees or give permission to use dependant on whether you are paid or whether the licensee does not earn money by it. Licence agreements may be different, as long as they still comply with the law, for example, the abovementioned consumer protection.
What can be licenced? A licence agreement, as well as all the copyright, refers to the creative work. Article 1 of the Act defines the work as: ‘any manifestation of the creative activity of individual nature, established in any form, irrespective of its value, designation or manner of expression.’ Licenses can be divided into full and limited, exclusive and non-exclusive, and voluntary and statutory. What does it mean?
The full licence allows you to use the work just like the original.
The limited license defines the exact scope of use (e.g., only within the European Union).
A non-exclusive licence allows other licensees to also exploit the same intellectual property.
An exclusive licence means that you are the only licensee.
A voluntary licence- the most popular one – means that the author grants it to other entities or individuals under specific terms and conditions.
Statutory licence – regulated or imposed by law.
Can I use memes?
There are two possible scenarios: the first one is to create a meme that is based on an existing picture. The second scenario is to make a meme from scratch, using a picture that has not been used before.
You take a ready-made character, like my favourite image of Freddie Mercury raising his hand in a triumphant gesture. You, then, add your own text – and I really mean “your own”, because, when you add some of Tuwim’s quotes to it, you violate the poet’s rights. Let’s assume that what you have written under the image of Queen’s singer are your own words. In that case, the only problem is the legality of the use of the main picture.
If more than 70 years have passed since its author’s death, the picture belongs to the so-called public domain – it has become a kind of “common heritage of humankind”. It is also possible that the photographer allowed others free and universal use of his pictures – as in the case of the CC0 license that was mentioned earlier.
If you create a meme from scratch – be careful, because you may hurt somebody. It is very easy to destroy someone’s life by adding a more or less accurate text to a photo, while that person will never clear his or her name again.
Exercise
Learn something about Krystyna Backiel and Janusz Ławrynowicz. Find their stories on the Internet.
Can I use someone else’s image?
Image is a representation of a person that makes him or her recognisable. In most cases, it is a face, which allows others to recognise and distinguish you from another person. But not always! There are more features that make it possible. For example, using a wheelchair or having a specific tattoo. When can you use someone’s image? There are three possibilities.
You can use it when it is an image ‘of a person constituting only a detail of a whole, such as a meeting, a landscape, or a public event’. That is, if the film or video would still be valuable without this person. However, it is worth knowing that there is no limit of, for example, nine people presented. This is a frequently repeated myth.
The next possibility is if it is an image of a commonly known person performing his or her public function. The key issue is the point when the “common knowledge” starts. For example, being recognised in the Internet industry is enough. There is no doubt that, under certain circumstances, a lesser-known person can join the group of those who do not need to be asked for consent.
The consent is the last possibility. Preferably in writing. Something provable, like an e-mail, is enough. Also, pay attention to consent fees (you may simply state that it is free of charge) or to the withdrawal of consent (you cannot forbid it, but consider liquidated damages)
Exercise
Try to create a simple e-mail, the confirmation of which could be evidence of having received someone’s consent for using his or her image. Mention fees, withdrawal and the scope of consent.
How to deal with GDPR?
Running an on-line business means collecting data from customers. Think about what you do with them and why you do it. Then try to write it down clearly.
Who are the groups of people from which you collect data? I’ll give you a hint – they could be employees, potential employees, customers, potential customers, newsletter recipients or people who downloaded your e-book. You collect different data from each group – in the case of newsletter recipients, it will be only an e-mail address, while data collected from employees will include, for example, a national identification number (PESEL). Each of the group requires collecting data for a different period of time – until they unsubscribe from the newsletter or for the period that is stated in the Labour Code.
You probably keep the data in different places and you secure them differently. Describe how this is done and state it clearly, so that you have it for future reference or you can instruct your employee on their use or access. Or to be able to explain them to the auditor.
Describe procedures of how to act in certain situations, for example, when the customer would like to access his or her rights, or if an unauthorised person seeks to access personal data. Spending some time on these issues and creating clear documentation will solve your problems with GDPR.
Exercise
Find and download a GDPR register of the processing operations sample document. After filling in this table, you will have a helpful tool to manage GDPR in your business.
What should be included in a Privacy Policy?
GDPR is not only what was described in the previous point. These are the internal activities that are useful to keep everything in order or in the event of a visit of an office representative. However, you need to be able to prove that you follow the GDPR by a document accessible to the persons whose personal data are processed. This document is most often called the ‘Privacy Policy”.
It should include all the information that is useful for these persons. For example, who you are. But also what kind of data you collect and process, why you process those data, and for how long you keep them.
What’s more, you should inform the people whose data you process about their rights. This includes the right to access their data or the right to be informed about how their data are processed. It also includes the right to object to the use of the data, to erase, rectify, or transfer personal data in certain situations. Do not forget to inform them that they can lodge a complaint to the national data protection authority.
Remember to mention how the can access these rights and how to contact you to do so. In this case, the Privacy Policy will be the first source of information for your customer and its credibility will improve your marketing in comparison with your competitors.
Exercise
Look at some privacy policies of companies from industries similar to the one you work in. Check how these documents describe the elements I mentioned before. Try to manage data processing in a similar way.
What are other possibilities to settle a dispute other than going to court?
There is an EU regulation concerning communication between sellers and buyers from different EU countries. The aim is to make it easier, without any barriers that different regulations and languages can create. In a nutshell, it all comes down to creating an Internet platform. You are obliged to place a link to it on your website – the most practical place will probably be on your website’s Terms and Conditions section. This is what Article 14 of the said Regulation states.
What does communication through this platform look like? A dissatisfied buyer from an EU country informs the seller about his dissatisfaction and they get a list of authorities that can resolve their dispute. They have 30 days to choose an authority – the seller chooses one and the customer accepts it. The chosen authority then deals with the whole dispute for the next 90 days and finds a solution that satisfies both parties. If it doesn’t find one – you can still go to court.
However, before going to court, you have to prove that you have tried to reach an agreement.
Exercise
Go to: https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home.choose
Language and check the platform mentioned earlier. Find out in what kind of situations it may be helpful and think of how to take it into account in your business to comply with legal requirements.
What should be proved while filing a claim?
If you sue somebody, any claim that you file must meet the requirements described in the Article 187 (1)(3) of the Polish Code of Civil Procedure. This states that the claim must include the information as to whether the parties attempted mediation or any other alternative dispute resolution or explain the reasons if such attempts have not occurred.
This means there are two possibilities. Firstly, the court will ask you if you contacted the other party to reach an agreement before you filed a claim. Secondly, if your answer is negative, the court will ask why. The contact with the other party does not have to be made via the platform. It can also entail sending a letter, most often a payment request, and not receiving an answer or receiving a negative one. It can also be the support of a mediator.
You should then be ready to explain the fact that you haven’t even tried to come to an agreement. My first piece of advice is this: try to at least to get a negative answer, or no answer at all, so that you could inform the court of this. Another piece of advice: the reason for not trying to contact the other party to reach an agreement may be your past experiences with your cooperation, another legal proceeding in progress, etc. If there is no chance to reconcile – check the additional information below.
Extra knowledge
If you are interested in taking further steps – court, bailiff, etc. – read the post on my blog: www.tomaszpalak.pl/jaki-jest-przebieg-odzyskiwania-od-kogos-naleznych-nam-pieniedzy