Legal letters ARE NOT your ultimate ‘weapon’! Let’s talk about dispute resolution
I’d like to talk to you about dispute resolution and why legal letters are not your ultimate weapon.
Often when you get people involved in a dispute, I’ll get phone calls from one party saying, “Can you please send a legal letter of demand to this other party, because I’m sick of this dispute and I want a result.”
Unfortunately, the most common reaction to a legal letter is to blow the whole dispute up and make it a lot worse. So what we like to do is look at the problem and what you actually want to achieve. “What is the solution that you’re after?” and let’s aim for that instead.
There are different ways of doing it, and there are all sorts of ways that you can communicate with the other party to firmly stick to the solution that you’re looking for, but to actually work toward a result.
We can help you with crafting emails, or practising conversations and strategies to achieve that result instead of making the dispute 10 times worse. Imagine what it would be like to have that nagging problem resolved and no longer consuming your energy?
How can Onyx Legal help you?
We can certainly help you if you’d like a letter sent by us, but we’d rather help you with letters you can send with a view to bringing an end to a dispute rather than making it worse. Make an appointment if you’d like our help.
Protecting the privacy of your customers and clients online doesn’t have to be complicated. Admittedly, if you attract the attention of hackers you could run into trouble fast (just ask Ashley Madison).
Here are 5 simple tips about privacy online to help you meet compliance with Australian Privacy laws, and give your clients the confidence to share their details with you. And it’s not just online. If you’re collecting personal information anywhere in your business it should be protected and handled in a way that is consistent with your privacy policy.
How can Onyx Legal help you?
We can help you in putting together both the Terms of Use and a Privacy Policy. We can also talk to you about any other terms and conditions you might need for your website.
One of the 7 Legal Essentials for doing business online is understanding how to use Copyright and Trademarks so that you don’t run in to legal trouble.
We’ve put together this simple legal infographic to help you out with:
5 Things You should know about Copyright Online (legal infographic)
5 Things You should know about Trademarks Online (legal infographic)
How can Onyx Legal help you?
If you’d like to understand how to protect your business copyright or trademarks, or defend a claim that you have infringed someone else’s rights, then
How To Use Copyright Images On Your Website And Avoid Legal Claims
I’ve been getting lots of questions lately about what you can and can’t do with copyright images you find online. Loads of people seem to think that just because an image shows up on a Google search it must be available for use for free. It is a common misunderstanding and now that technology has caught up, is likely to get a few people in trouble.
You might be one of those businesses who got a web developer to put together a website for you years ago, and relied upon them to sort out your images. Actually, it might not have been that long ago!
Do you know where your images have come from?
Just last year my 74 year old mother wanted a website for her Life Coaching business and briefed a small independent developer to do it for her. The very helpful and inexperienced developer said she’d look after the images and told Mum not to worry about it. When I looked at the website I was immediately really worried – all stock images (some still showing watermarks) and no licences or permissions! My immediate concern was to avoid getting any legal demands for payment for breach of copyright and a take down notice. We’ve since replaced all the images with appropriately licenced copies.
Before digital cameras, photographs weren’t likely to be shared
Copyright is something that is automatic. When a photographer takes an image, they have copyright in that image. Yes, there are exceptions, but let’s stick with the basics for now. So if you take a photo, you own copyright in that image. Would you be OK if other people used your image to promote their business? Or would you send a legal letter of demand?
In the old days before digital cameras and Facebook, you had to get your photographs processed at the local camera shop or pharmacy. Then they moved into supermarkets, and now you can order your prints online and get them delivered in the post, if you get them printed at all.
When photographs were only really shared in hard copy, it was much easier to keep track of copies and how they were used. Today, you might share a photo on Facebook, Pinterest, Instagram or any one of a number of other social networking sites and think that no one will use it. That happened to a family who have a daughter with Down syndrome who is quite ill and undergoing life-saving treatment. They rarely posted photographs and when they did it was meant only for close friends and family. Just one image they posted was taken by an unknown person and uploaded to a stock photo website. The company that used the photo was advertising a prenatal test that often leads to abortions. It is not the first time a photo of a child with a disability has been misused.
Mother horrified after a company used photo of her young daughter for an offensive ad
Can you imagine how you would feel if you were incredibly protective of a member of your family, and suddenly saw their image plastered all over advertising at every bus stop and tube station you went past? All without your knowledge or consent. That is what happened to that family. The company using the image in their promotion were naturally equally distressed. They had followed the rules (about purchasing images, not about being sensible how they use them) and still ran into trouble!
With digital cameras and social media it’s so easy for images to spread internationally, overnight. That is the problem. Because images are easily accessible, people think they are free. But the same rules that applied when images were hard copy, apply today.
See a picture you like – What should you do?
What a lot of people do is use a copyright image without any thought for the consequences. Most people have no idea they are doing anything wrong. The trouble is, that can come back and bite you! You could get a legal letter of demand any day!
People complain that if you put an image out there, you should want to share it. This isn’t limited to images. A company in South Australia recently announced that they have lost $3,000,000 in sales due to the illegal download of just one of their publications. Could you afford to lose that much from your business? Do you still feel that anything you find online should be free to share?
Copyright is meant to protect the livelihood of the author, artist or creator
So, what should you do if you find an image you like online, before you plaster it on your website or social media post? Firstly, get permission.
Yes, getting permission can be a complete pain in the @rse. Speaking from experience, it is particularly difficult to get permission to use stills from movies. I don’t know why movie houses make it so hard. Maybe the studios that produce those movies don’t recognise the need, don’t care or don’t want people to use stills from their movies. Hey Dreamworks! There is potentially a whole added industry in stills, just saying…
Anyway, sorry, back to the topic at hand –
Getting permission
If you purchase stock images, you get permission in the form of a license to use that image. You’re not actually buying the image like you would a postcard; you are buying a limited copyright license attached to the image. All of the images in this post are subject to copyright license. An example of some license terms include:
…a non-exclusive, royalty-free, perpetual, worldwide, non-transferable sub-license to use, reproduce, modify and/or display the Work, for any purpose other than as prohibited…
By way of example, the above license may include the use, modification and/or display of the Work in connection with the following… Business and commercial purposes…
…may post and/or upload the Social-Media Enabled Works directly onto Social Media Websites and Applications as long as…
For greater clarity, it is noted that reproducing the unmodified Work on mugs, t-shirts, posters, or other similar merchandise for resale is not permitted, as primary value would still lie in the Work itself.
So, check the copyright license terms of your stock image or clip-art provider. Note that some have copyright terms that are time limited, rather than perpetual.
What if it is not a stock image?
If you want to use an image from somewhere else, you need their permission. If the owner is easy to find, then asking directly and keeping a copy of their written consent, is the easiest way to prove that you did have permission to use the image and the time you used it.
It is your responsibility to know the origin of your copyright images and to have the right permissions to use those images online.
The process for buying and selling online businesses is very similar to buying and selling a bricks-and-mortar business. However, online businesses add in a few extra complications that buyers and sellers should consider. Valuation, in particular, may be difficult to determine for online businesses.
Buyers:
Consider the business’s online presence. One of the first things that you want to do if you are considering buying an online business is to consider its reputation online. Are you going to keep the name and services? Will that negatively affect the business in the future? Check review sites or talk to customers directly. Consider whether this market will still be there in the long term (is the business catering to a fad?).
How much is this business actually worth? Check the financial records, including assets and liabilities. Check legal information and tax issues. This will help you determine whether the business is worth the asking price. Accountants and business advisors who specialize in online businesses can help as well. There are accepted methods for valuing websites based on earnings or traffic that are different to the valuation methods traditionally used for offline businesses. Contact us to help you with valuation issues.
Sellers:
Gather your financial and legal information. Find financial statements for the past three years (if possible) and details about all assets—physical and other assets like goodwill or intellectual property. Gather leases, insurance policies and all registration details associated with the business, online or offline.
Value your business. Once you have all of the information you need, then you can begin to determine what your business would be worth to a potential buyer. What you think it is worth and what the market will pay are not always the same thing. There are different valuation methods that can be used depending on whether you are selling physical assets or just an online business. . Valuation can be complicated, so give us a call to help with this process.
Find potential buyers. The traditional methods for attracting buyers still apply, although if your business is purely online, you now have a potential global market. Consider where you might get the best result including advertising online, through your existing networks, trade publications, word of mouth or through specific customers. There are some dedicated platforms that have been established specifically for the sale of purely online businesses. We can help to point you in the right direction.
For both buyers and sellers:
Negotiate the sale. Negotiations for online businesses need to involve the basics like sale price, deposit amount and settlement period. However, sellers also need to consider handing over things like domain names, passwords, logs, customer contact information and databases. Selling an online business is much more about selling information than its brick-and-mortar counterpart. The buyer may also require some training to continue to the run the business.
Prepare and agree a contract. We can help prepare the contract so that all of the relevant information of the sale is addressed. For example, the right to use names and customer information will probably need to be specifically included in the contract.
Prepare the transfer documentation. Transferring a business can also mean transferring registrations, permits, licenses, etc. As a seller you may wish to cancel your ABN, notify the ATO of ownership changes and deal with any tax-related issues.
How can Onyx Legal help you?
Whether you are buying or selling, talk to us first so we can walk you through this complicated process.
5 Ways To Check Whether Questionable Email Is Spam
Are you one of those people who can’t help opening emails, even when you don’t know who they are from and suspect the email might be spam? Or worse, do you actually waste your time responding to people and telling them not to bother you any more with their offers to get your website on the first page of Google, send you cheap pharmaceuticals or get you a date?
Don’t waste time responding to emails that you should just delete.
With a little practice you can get your delete button working much quicker, saving you time and aggravation. Some spam is obvious and your junk mail filter will pick it up. Other emails somehow get through the filter, but are just as obvious from their title and you can simply run through the list and delete. But what do you do with those that look like they might be legitimate?
The Australian Communication and Media Authority is the government entity responsible for monitoring anti-spam compliance in Australia. Despite the difficulty in navigating their website, they receive an average of 27,350 Spam Act breach complaints per month (ACMA Spam statistics January 2015). 100% of complaints currently under investigation relate to lack of consent.
100% of complaints about junk email or SMS investigated by ACMA are about
lack of consent.
You can add your spam complaint to ACMA’s ever increasing list simply by forwarding spam-SMS to 0429 999 888 or emails to the Spam Intelligence (oxymoron right there) Database at report@submit.spam.acma.gov.au. Unfortunately that isn’t going to solve the problem. Of all the complaints received, only about 1 investigation per month gets finalized. An average of only 570 informal warning letters per month are sent out to offenders.
Since the beginning of 2015, ACMA has only taken formal action against two companies – Club Retail and GoDeals. Club Retail has been required to establish a double opt-in system for adding people to their email lists and GoDeals have been warned to ensure their unsubscribe system does work and people who unsubscribe don’t continue to receive their emails.
Under the legislation, ACMA can issue informal warnings, formal warnings (which require a business to take action in a specified time-frame, or else), enforceable undertakings (the alternative to being fined), infringement notices (fines) or start court action. Fines can be as high as $1.7 million for repeat offenders.
What this means for your inbox? Unless the company sending you spam SMS or emails is doing it at a high volume and there are lots of complaints to ACMA, or they have a big enough business to make it worthwhile to threaten them with fines, your most effective course of action is to mark the email as junk mail, block the sender and hit delete.
So, how can you tell whether an email is Spam or not?
Junk email that is not anti-spam compliant.
Do You Know Who Sent You The Email?
If your email system shows that you’ve received an email from ‘Hugh Jackman’ you might suspect that its spam. But if you get an email from say ‘David Thompson’ or a name of someone you think you should know, then you might be more inclined to open it.
Have a look at the email I received recently from Sarah and Creative AUST Pty Ltd. Sounds like someone I could know, fairly innocuous and looks official with the company name alongside.
If you have any hesitation, a quick online search of the sender will bring up Facebook and LinkedIn results and a bundle of images associated with the name. If it really is someone you know, or should know, you’ll find out quickly. No time wasted in deciding whether or not to take the message seriously.
I recently received an email from Jade Capital, a company that sounded legitimate and who’s email looked like something I might possibly have agreed to receive. When I searched the name of the sender, I couldn’t find any details linking them with the company. Nothing. Delete.
Funnily enough a week later I received another email naming both my husband and I. So I took a moment to write back and suggest they implement some spam-compliance into their system. Things like:
let the recipient know where you got their name (in that case through buying another company)
if this is a first communication, provide an opportunity to opt-in to regular communications instead of automatically adding people in
clearly identify the company and its contact details
make sure the sender is identified as part of the company, particularly if it is a sales manager or other person who might not appear in the ‘About Us’ page of your website
ensure you have an unsubscribe facility on the email
It was a useful conversation, for both of us.
Does the email address match the Sender Name?
The first thing I check is whether or not the email address next to the name is even remotely related. In this example, the alarm bell starts ringing immediately because the email is a fairly stock standard gmail address rather than a proprietary site address.
What is worse is if the email address has absolutely no relation the name of the sender, like dgirl49@weirdclub.com *ding ding ding*
Depending on what email system you are using, you might also be able to hover over the email address of the sending and check the hyperlink to see that the listed address and the actual address are the same. This is easy in Outlook but not straightforward in Gmail. If it the hyperlink is different – delete.
Who was the email addressed to?
If your name or one of your usernames appears in the salutation of an email, there is a good chance you signed up to receive communications somewhere along the line, even if you don’t remember it now.
If the name is just what comes before the @ in your email address, it could either be something you signed up for, or it could be spam. It is possible that your email address was picked up by a robot scraping email addresses from different sites across the internet.
If the salutation is generic, ‘Dear Friend/ Business Owner’ or simply ‘Hi/ Hello’ or no salutation at all, then there is a higher chance that it is spam.
Is the company sending the email legitimate?
DO NOT click on any links in the email. That is possibly the quickest way to get a virus into your system. If you want to check a company, open a browser and search it!
I have seen some rather clever operations that have established company websites to support their scamming emails, but they are relatively easy to spot. The language on the site tends not to read well and other search results don’t tend to support the business details. You may need to do a little digging with international companies.
If appears to be a registered business and I’m really not sure, I would generally check government sites like the Australian Securities and Investment Commission (ASIC) and the regulatory site for checking Australian Business Numbers. It depends on how obvious the fake is. In this example the company name looks a little unusual and an ASIC organisations and business name search doesn’t show an exact match
Are contact details listed?
The quickest way to check a company out is to call a telephone number listed in their email. If it is a legitimate business and you get through, at least you know. They might even appreciate the feedback that their emails look like spam. Next check the address.
In this attached email you can see that headquarters are identified as a Sydney address. A quick search of the address shows that it doesn’t even exist. Yes, there is a Foveaux Street in Surrey Hills, but there is no number 30. At number 28 there is a college listed, and then another business from number 38.
Any legitimate company will include an appropriate address in their emails. If the address is not real, the company probably isn’t either.
Just be aware that in Australia the use of PO Boxes is legitimate and accepted. In the US, their anti-spam compliance seeks a street address. For a lot of small businesses set up by people working from home, that just didn’t work, so there are companies in the US that provide bulk site addresses rather than proper street addresses. So this search might not give you a definitive answer.
And if you are still worried about whether or not the email you’ve received is legitimate? Perhaps you should ask yourself how the message helps you in your business and whether or not it is worth your time. If it is potentially an incredible lead, or something you do want to follow up and you continue to be concerned, we can help investigate further.
For more information on working with us to protect your online business, please contact-us or book a short advice strategy session.
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