Legal Issues
Web Design: Diploma: NC
Legal Issues and
web publishing
Author & Acknowledgement: Mr T Osman
Edits: N R Hartland
Date last saved: 12/02/2016
1
Legal Issues
Web Design: Diploma: NC
Legal Issues and Web Publishing
Author: Tom Osman
Disclaimer: The following material is intended only for
academic tutorial purposes and as such, does not claim
to offer any legal advice. Should you need to act on any
of the issues raised in this paper, you are advised to
consult your own legal adviser.
When a web site goes live it is effectively published and is in the public
domain. The fact of publication means that we need to be very careful
not to transgress any of a number of national and international laws
and guidelines. Perhaps the most common transgression is that of
copyright, but there are others. The following list will give you some
indication of the scope of legislation that governs published material.

(UK Law) The Copyright Designs and Patents Act 1988
(International Law) Berne Convention for the Protection of
Literary and Artistic Works (1886)

(UK Law) The Data Protection Act 1984 and 1998

(UK Law) The Freedom of Information Act 2000

(UK Law) The Regulation of Investigatory Powers Act 2000 (RIP)

(UK Law) The Obscene Publications Act 1959 and 1964 extended
by The Criminal Justice Public Order Act 1994 sections 84 - 87
and also section 155 (relating to stirring up racial hatred)
Date last saved: 12/02/2016
2
Legal Issues
Web Design: Diploma: NC

(UK Law) The Telecommunications Act 1984

(UK Law) The Protection of Children Act 1978

(UK Law) The Defamation Act 1996

(UK and European Law) The Human Rights Act 1998 - articles 8,
9 and 10 of the European Convention on Human Rights

(UK Law) The Computer Misuse Act 1990
There is also a growing body of case law beginning to build up around
the practice of publishing on the Internet. The Shetland Times v.
Shetland News (1996) [http://www.ariadne.ac.uk/issue6/copyright/
accessed: 19th February 2015] provides a useful indicator to what
may be regarded as acceptable linking into other web sites.
The Microsoft v. TicketMaster case addresses issues of "deep linking".
Deep linking is what happens when a link is made directly to a page
deep within a third party web site thereby bypassing the third party's
home page.
Original link:
[http://searchenginewatch.com/sereport/97/06-ticketmaster.html
accessed: 3rd March 2001]
[Current link:
http://searchenginewatch.com/sew/study/2067064/ticketmaster-microsoftsearch-engines
accessed: 19th February 2015]
It is entertaining and instructive to have a look at the "Dilbert"
correspondence This addresses issues of "in line linking", that is linking
Date last saved: 12/02/2016
3
Legal Issues
Web Design: Diploma: NC
to a third party web site in such a way that the third party material
seems to be part of your site.
Original link:
[http://www.cs.rice.edu/~dwallach/dilbert/ accessed: 3rd March
2001].
[Current link:
http://www.cs.rice.edu/~dwallach/dilbert/
accessed: 19th February 2015]
Other legal issues to consider are those of "Trademarking" and
"Passing off" whereby an unscrupulous web site can use techniques
(like frames) to "capture" a third party web site within the overall look
and feel of the first web site. The use of frames is contentious not only
in technical terms but also in legal terms.
Copyright
Copyright is
"... the right to prevent third parties from copying (and doing certain
other things) without permission. In the UK copyright is totally
automatic, there is no need to register the work, pay fees or undergo
any bureaucracy.
Date last saved: 12/02/2016
4
Legal Issues
Web Design: Diploma: NC
Copyright is only acquired when
1. The material is new (i.e. not copied)
2. The material is in a fixed format "
TASi (The Technical Advisory Service for Images)
Original link:
[http://www.tasi.ac.uk/framework/capture/copymod.html - accessed:
3rd March 2001]
Try link:
http://www.jiscdigitalmedia.ac.uk/guide/copyright-and-still-images-frequentlyasked-questions/
[accessed: 19th February 2015]
Copyright exists to protect the interests of intellectual and creative
innovators. Without copyright there would be no incentive whatsoever
to invest potentially huge sums of money in the production of (say) a
film or a musical work. The creator of a work can assign copyright to a
third party. The creator can assert Moral Rights to a work, once
asserted, moral rights are NOT transferable.
The owner of the copyright can enforce rights via the courts and can
claim damages for financial loss and an also seek court orders to
prevent "pirated" goods being produced and distributed.
Date last saved: 12/02/2016
5
Legal Issues
Web Design: Diploma: NC
Moral Rights
There are three moral rights.
1. To be recognised as the creator (or author) of a work
2. To object to being portrayed as the creator (or author) of a work
that you did not create. By definition everyone other than the
creator of the work has this right.
3. To object if your work is treated in a derogatory manner that
damages your reputation.
International Copyright
Managing the international aspects of copyright is the concern of The
World Intellectual Property Organisation (WIPO). WIPO is a United
Nations agency and can be found at (original link:)
http://www.wipo.int [accessed 3rd March 2001]
try this link:
http://www.wipo.int/portal/en/
[accessed 19th February 2015]
The Berne convention
[http://www.wipo.org/eng/general/copyrght/bern.htm accessed: 3rd
march 2001 link now changed] provides for reciprocal copyright
protection between countries.
Date last saved: 12/02/2016
6
Legal Issues
Web Design: Diploma: NC
Try also this link:
http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html
[accessed: 19th February 2015]
Fair Dealing
"Copyright in literary, dramatic, musical and artistic works and
published editions is not infringed if copied for the purposes of
criticism or review, reporting current events, or research or private
study." Oppenhiem, Charles: "Intellectual Property"
[http://www.ukoln.ac.uk/services/elib/papers/other/copyright/session1/
accessed: 19th February 2015]
Relevant organisations
The Performing Rights Society exists to protect the rights of
musicians, it's worth taking a look at their web site at
http://www.prsformusic.com/Pages/default.aspx.
[accessed: 19th February 2015]
The Copyright Licensing Agency which looks after the rights of
Authors of books Journals and periodicals can be found at
http://www.cla.co.uk.
[accessed: 19th February 2015]
Date last saved: 12/02/2016
7
Legal Issues
Web Design: Diploma: NC
What this means to a Web Publisher

If you want to use anything on your web site that you didn't
create yourself, you have to obtain permission. Permission MUST
be in writing.

An exception to this is material that is out of copyright. The
Copyright Designs and Patents Act 1988 specifies that material is
deemed to be out of copyright 70 years after the creator's death.

Facts cannot be copyrighted, so it is perfectly possible to publish
a list of all of the street names in Barnsley (S. Yorkshire). On the
other hand, particular collections of facts that were selected by
the creator/author according to a set of criteria can be
copyrighted, for instance although a specific URL cannot be
copyrighted the collection of URLs published in The Northern
College "Web Links" databases is definitely subject to copyright.

Fair dealing is unlikely to apply to web publication.

Taking an image and editing its appearance, for example by
redesigning elements of an OS Map will be in clear breach of
copyright.

Take care to read the copyright notices of any web site that you
take material from, these notices will define the terms of your
use (or not) of the material, remember there are many sites on
the web that will give you permission to download and use
material.
Date last saved: 12/02/2016
8
Legal Issues
Web Design: Diploma: NC
Data Protection
The purpose of the 1984 Data Protection Act is to try to achieve a
balance between the rights of the individual and the needs of
institutions to process data about individuals. The Data Protection Act
applies only to personal data relating to a living individual.
Whereas the 1984 act applied only to data held in electronic form, the
1998 Act applies to all forms of data.
Both factual data (e.g. date of birth, address) and opinion (e.g. a job
reference, a school report) are covered by the Act. Images of people
are also covered. The Act requires any institution processing personal
data to adhere to eight principals.
1. Personal Data shall be processed fairly and lawfully
2. Personal data shall be obtained only for one or more specified
and lawful purposes
3. Personal data shall be adequate, relevant and not excessive in
relation to the purpose or purposes for which it is processed
4. Personal data should be accurate and where necessary kept up
to date.
5. Personal data processed for any purpose shall not be kept for
longer than is necessary for that purpose.
6. Personal data shall be processed in accordance with the rights of
the individuals under the Act.
7. Appropriate technical and organisational measures shall be taken
against unauthorised or unlawful processing of personal data and
Date last saved: 12/02/2016
9
Legal Issues
Web Design: Diploma: NC
against accidental loss or destruction of, or damage to personal
data.
8. Personal data shall not be transferred to a country outside the
European Economic Area unless that country ensures an
adequate level of protection for the rights and freedoms of data
subjects in relation to the processing of personal data.
Sensitive Data
Certain types of data are defined to be especially sensitive and hence
need special care taken over how they are processed and
disseminated. Ethnicity, Trade Union Membership, sexual habits,
health, political and religious views and criminal records all fall within
the definition of "sensitive data".
Date last saved: 12/02/2016
10
Legal Issues
Web Design: Diploma: NC
What this means to a Web Site Publisher

Make sure that the user has access to clear terms and conditions
of use of the web site. If monitoring takes place, explain this to
the users.

Explain how and by whom personal data processed via the web
site will be used and for how long it will be kept.

If the web site has a form for the user to complete (application
form, purchase order form etc.) the user needs to be given the
opportunity to refuse to give permission for their details to be
used in direct marketing databases.

It is good practice to ensure that a user of a web site has a way
of correcting any personal details that may be incorrect. This
may be as simple as providing e-mail feedback.

Cookies need to be handled with care - the user needs to be
informed that a cookie will be installed on their machine and
what the cookie does. (NB a cookie is a small text file that is
placed on the users local hard disk. Each time a web site is
visited a check is made to see if one of its cookies exists on the
visitors hard drive, if it does, then the web site "knows" who the
user is and can tailor responses to the users known interests
(the Amazon site is a good example of such a site).

A web site publisher has a duty to maintain the privacy and
security of any personal data being processed. This means that
adequate backup and security systems are in place (e.g. virus
checking and password protection).

Any material published on a web site has a world-wide audience.
The 1998 Act requires restrictions on dissemination to countries
outside of the European Economic Area. Web publishers should
Date last saved: 12/02/2016
11
Legal Issues
Web Design: Diploma: NC
ensure they comply by password protecting sensitive data, and
by using technical resources (a firewall) to block access
originating from unauthorised sources.

Be aware that the personal details of contributors to an on-line
conference, a bulletin board or a guest book may well be subject
to the 1998 Act.

Be cautious about the use of frames

Consider that you may well need written permission to publish
images of living individuals.
The Freedom of Information Act 2000
The Freedom of information Act applies only to public institutions, the
exact list of public bodies is specified in schedule 1 of the act but
includes schools and colleges (that are publicly funded).
The Act is to be fully in place within five years (i.e. by 2004). For the
first time in UK law, individuals and companies have a right to be
informed in writing of the information held on them by a public
authority. The public authority may demand a fee for providing this
information and it may refuse if the cost of complying is too great (this
is a limit prescribed by the Secretary of State (section 13) or if the
request is vexatious or repeated (section 14).
Grounds for exemption from the duty to disclose information are Law
Enforcement, National security, health & safety, commercial interests,
effective conduct of public affairs and data provided subject to legal
professional privilege.
Date last saved: 12/02/2016
12
Legal Issues
Web Design: Diploma: NC
Under the Act civil proceedings are not an option, any appeal against a
decision not to disclose information will need to be taken to an
Information Commissioner.
Details of the Act can be found at
http://www.legislation.gov.uk/ukpga/2000/36/contents
[accessed: 19th
February 2015]
What this means to a Web Publisher

If, as a web designer and publisher, you undertake work for a
public body, it would be wise to at least discuss with your client
whether the web site design has any impact on their duty to
disclose information.
The Regulation of Investigatory Powers
Act 2000
The RIP Act deals with the interception of communications and allows
the interception of public telecommunications traffic. The Act gives
powers to law enforcement agencies to issue demands for encryption
keys (it will be an offence to refuse to provide such keys).
This means that Internet traffic will be subject to interception and
surveillance.
Date last saved: 12/02/2016
13
Legal Issues
Web Design: Diploma: NC
However, "The deeply unpopular legislation that allows the security
authorities to snoop on emails could be ruled illegal by the European
Commission" [The Independent 5th November 2000 http://www.independent.co.uk/news/Digital/Update/200011/spy051100.shtml accessed: 4th March 2001]
This link has now moved.
For RIPA now try:
http://www.legislation.gov.uk/ukpga/2000/23/contents
[accessed: 19th February 2015]
What this means to a Web Publisher

Be aware that your ISP could be required to install a device that
will enable the security and law enforcement services to install
equipment capable of monitoring all e-mail and internet traffic.

If you use encryption be especially careful not to lose the key.

Be prepared to divulge any encryption keys you may use in
order to protect data (or be prepared to go to jail).
Date last saved: 12/02/2016
14
Legal Issues
Web Design: Diploma: NC
The Obscene Publications Act 1959 and
1964 extended by the Criminal Justice
Public Order Act 1994 sections 84 - 87
and section 155, the elecommunications
Act 1984 and The Protection of Children
Act 1978
According to the Obscene Publications Act 1959,
" an article shall be deemed to be obscene if its effect . . . is, if taken
as a whole, such as to tend to deprave and corrupt persons who are
likely . . . to read, see or hear the matter contained or embodied in it."
Gould, Mark - University of Bristol - JISC Seminar 1997
[http://aranea.law.bris.ac.uk/JISC/JiscSeminar/Sld006.htm accessed:
4th March 2001]
Please note link now unavailable.
It is an offence to publish or own or control (with a view to publication)
an obscene article.
Date last saved: 12/02/2016
15
Legal Issues
Web Design: Diploma: NC
The Criminal Justice Order Act updates the OPA by referring
specifically to video and images of children, Part VII - Obscenity and
Pornography and Videos, sections 84 - 92 have particular relevance.
[http://www.hmso.gov.uk/acts/summary/01994033.htm accessed:
4th March 2001]
Please note link now unavailable.
The Telecommunications Act 1984 makes it an offence to use the
public telecommunications system (and that means most internet
access) to transmit messages or other matter that is grossly offensive,
indecent, obscene or menacing.
The Protection of Children Act 1978 criminalises the distribution,
possession and advertising of indecent images of children under the
age of 16. In the context of the web having the images residing on
your server may well constitute possession.
"This statute concerns (amongst other things) pictures of children
under the age of 16. Under the Act it is an offence to take or (more
importantly in this context) distribute indecent photographs or pseudophotographs of children."
Gould, Mark - University of Bristol - JISC Seminar 1997
[http://aranea.law.bris.ac.uk/JISC/JiscSeminar/Sld009.htm accessed:
4th March 2001]
Please note link now unavailable.
A pseudo photograph could be entirely generated by computer and
encoded as a gif, jpeg or png file.
Date last saved: 12/02/2016
16
Legal Issues
Web Design: Diploma: NC
Section 155 of the Criminal Justice and Public Order Act 1994 makes
the offence of publishing racially inflammatory material to be an
arrestable one.
[HMSO
http://www.legislation.gov.uk/ukpga/1994/33/section/155
accessed:
19th February 2015]
What this means to a Web Publisher

Take care not to publish obscene material (esp. images and
videos)

Ensure that minors cannot gain access to unsuitable material
(password protection may be one way of achieving this)

If your web site is interactive, monitor the contents of guest
books, chat rooms and user accounts.

Do not allow your web site to publish racially inflammatory
material
The Defamation Act 1996
Material placed on a web site is published and is subject to the laws
governing Libel and slander.
Libel is a defamatory statement that exists in a permanent form, such
as a web page.
Date last saved: 12/02/2016
17
Legal Issues
Web Design: Diploma: NC
If as a web designer and editor you publish something that is
damaging to the standing and reputation of a person you are likely to
be committing libel. If, however you are sure that what you publish is
true, then that is a defence against claims of libel.
Section 1 of the Defamation Act 1996 states that...
1. - (1) In defamation proceedings a person has a defence if he shows
that(a) he was not the author, editor or publisher of the statement
complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did
caused or contributed to the publication of a defamatory statement.
HMSO
http://www.legislation.gov.uk/ukpga/1996/31/section/1
accessed:
19th February 2015]
The case of Laurence Godfrey v. Demon Internet Limited was the first
libel action against a UK internet company. Dr. Godfrey objected to
material posted to a News Group that he claimed libelled him. Dr.
Godfrey had notified Demon of the defamation and requested removal
of the offending item. Demon had not responded and Dr. Godfrey
sued. This meant that Demon could not use the argument that they
were storing and passing on messages without being aware of the
content.
[BBC News
http://news.bbc.co.uk/1/hi/sci/tech/304869.stm
accessed: 19th
February 2015]
Date last saved: 12/02/2016
18
Legal Issues
Web Design: Diploma: NC
What this means to a Web Publisher

If defamatory material is stored on your web site and you know
about it, then you could be guilty of libel

If you create a link to a page you know is defamatory, then you
could be guilty of Libel

If your web site is interactive, consider monitoring the contents
of guest books and chat rooms and user accounts.
The Human Rights Act 1998 and articles
8, 9 and 10 of the European Convention
on Human Rights
The Human Rights Act 1998 is intended to "... give further effect to
rights and freedoms guaranteed under the European Convention on
Human Rights". This means that for the first time British courts must
consider and decide human rights issues.
[HMSO
http://www.legislation.gov.uk/ukpga/1998/42/contents
accessed:
19th February 2015]
Articles 8,9 and 10 of the European Convention on Human Rights have
particular relevance.
Date last saved: 12/02/2016
19
Legal Issues
Web Design: Diploma: NC
Article 8 refers to the right to private life and "his correspondence" and
states that there "shall be no interference by a public authority " with
the exercise of these rights. There are exceptions, based on national
security, law enforcement and the rights and freedoms of others.
Article 9 refers to the rights of freedom of thought and freedom to
publicly manifest these beliefs. Again, there are restrictions based on
the interests of public safety in a democratic society, the health,
morals and rights and freedom of others.
Article 10 holds that everyone has the right to the freedom of
expression. However, it states that this right also carries duties and
responsibilities.
[Hellenic Resources Network (HR-Net)
http://www.hri.org/docs/ECHR50.html#C.Art8
accessed: 19th February
2015]
What this means to a Web Publisher

Be careful of overcautious censorship

Be prepared for a challenge to the RIPA
Date last saved: 12/02/2016
20
Legal Issues
Web Design: Diploma: NC
Summary
Ensuring that your web site is truthful, well researched, decent, nonhate promoting and does not try to pass off other peoples work as
your own should ensure that you have published an acceptable site.
As you will have noted, the legal issues raised by this paper are
complex and sometimes contradictory. Perhaps the most contentious
issue at present is that of the RIPA. Will the UK law have to give way
to the European Convention on Human Rights? Certainly if you are
concerned about the legality of anything that may be published on
your web site, you should seek legal advice.
From a pragmatic standpoint it would be wise for any Web Publisher
to:

Ensure all material is either:
o
Out of copyright
o
Owned by the publisher (i.e. yourself)
o
Has copyright clearance
o
Ensure that any personal information that is processed is
done so with the informed consent of the person
concerned

Ensure that personal data is processed according to the 1998
Data Protection Act

Ensure that no obscene material is published

Ensure that not racially inflammatory material is published
Date last saved: 12/02/2016
21
Legal Issues
Web Design: Diploma: NC

Ensure that no defamatory material is published

Be prepared to respond to requests from individuals who claim
that your site contains inaccurate or defamatory material about
them.
Finally, remember that any web site published in the UK has the
protection of the Computer Misuse Act 1990. The Act prohibits
"unauthorised access to material", "Unauthorised access with intent to
commit or facilitate commission of further offences" and "Unauthorised
modification of computer material"
Original link:
[HMSO http://www.hmso.gov.uk/acts/summary/01990018.htm
accessed: 5th March 2001]
Now, use the following link:
http://www.legislation.gov.uk/ukpga/1990/18/contents
[accessed: 19th February 2015]
Date last saved: 12/02/2016
22