Digital publishing law: why comply?

The preponderance of the laws that regulate commercial conduct online are the same laws that regulate commercial conduct offline: contract law, the law of torts, commercial law, consumer law, intellectual property law, and so on. If you know a little (or a lot) about publishing law, you know a little (or a lot) about digital publishing law.

But doing business on the internet involves added complexity and added uncertainty.   Added complexity, because a new layer of laws veils the legal backcloth.  Added uncertainty, because the new and evolving technologies may not yet have been digested by the system of legal precedent – and by the time a recognisable body of jurisprudence about a technology has emerged, the technology may be obsolescent. Complexity, uncertainty and evolution are three causes of widespread non-compliance with the law.

The extent of non-compliance should not be underestimated.  For example, the E-commerce Regulations demand, with the inevitable exceptions, that e-retailers must make available to their customers “appropriate, effective and accessible technical means” allowing the customer to identify and correct input errors before placing an order.  This may be dealt with by means of a “confirm your order” page: but anyone with a passing familiarity with online shopping will know that as often as not there is no pre-order correction procedure.

Some fairly common internet practices are outlawed. For instance, many websites will send marketing emails to users who do not opt-out – when in some cases they should only be sending the emails to users who opt-in.

One reason why online compliance is particularly important is that anyone can conduct an impromptu audit of your website – and potentially find you wanting.  This can be embarrassing. For example, whilst writing this I visited the website of one of the most prestigious law firms in the world.   Under the Privacy and Electronic Communications (EC Directive) Regulations 2003, a person using a website that serves cookies should, amongst other things, be “provided with clear and comprehensive information” about the cookies.  (Cookies are sent by a web server to a web browser and then sent back to the server each time the browser accesses that server, enabling the server to recognise and track the browser.) The law firm website uses site-wide session cookies and instructs Google to serve four persistent Google Analytics cookies to the user.  But the legal notice on the firm’s website says that the website doesn’t use cookies, other than session cookies in one particular part of the website.  I doubt whether the firm in question would welcome publicity about this kind of (albeit technical) non-compliance.

But there is more than just embarrassment at stake if you fail to comply with the laws relating to digital publishing. Contracts of sale that can be rescinded at the option of your customers; Trading Standards investigations and prosecutions; investigations and adverse decisions of the Information Commissioner; and civil claims by customers: the risks are varied, and non-compliance can be expensive.

Because of regular changes in the law relating to the internet and the technologies from which it is built, digital publishers should ensure not only that they have the expertise to identify the issues, but that they regularly update that expertise and regularly audit their compliance.