Disclaimers: What They Do and Don’t Protect You From

Disclaimers: What They Do and Don’t Protect You From

Disclaimers: What They Do and Don’t Protect You From

Disclaimers: What they do and don’t protect you from 

As a business owner, it is likely that you run a website, blog or social media to help people find you, advertise and promote your products or services. It is the most effective way of attracting potential customers or clients in this digital age.

When someone visits your website, you are offering them information of some sort. Are you always 100% certain that all the information on there are accurate and up to date?

Even if your answer is yes, do you know how your customers or competitors are using or interpreting that information? The best you can do is hope they are using it the way you intended, but really it is out of your control.

This is why having a disclaimer is always a good idea. It can better protect you and your business.

What is a disclaimer?

Almost all websites have disclaimers. You must have seen one before. Sometimes disclaimers are hidden in terms of use, and sometimes they have their own individual link in the footer, and sometimes they appear in every footer, whether that is on a website or email.

A disclaimer is a notice that you display to protect you from potential legal issues; it is a statement that you are not responsible for something. To give you an example, here is Wikipedia’s no guarantee disclaimer:

Wikipedia cannot guarantee the validity of the information found here. The content of any given article may recently have been changed, vandalized or altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields.”

 

So, why is it important to have a disclaimer?

Well, consider the case where someone claims that they have relied on your information and suffered loss as a result. Let’s look at an example.

A marketer promotes pre-sales of a real estate development through a website. (A common cause of claims in court.)

The website has some images that are ‘artist’s impressions’ of what the development will look like when it’s finished and might contain other information like a copy of a survey diagram. It might also contain a list of finishes to be included in the final development.

Survey diagrams are really things you should check with a surveyor, engineer or other professional, rather than take from a marketing brochure, but that might also depend on who is providing the brochure and what expertise they say they have.

The website should clearly caution the buyer that the artist’s impressions might not be true to the end result and that a buyer should make their own enquiries to verify information before they decide to buy; like checking the inclusions in the contract with the builder. If there are no clear statements, it is possible that a buyer could claim they were misled by the information on the website and would not have bought otherwise. Then if the property turns out being something they don’t want or doesn’t have the value they expected it to have, they sue the marketer to try and recover their losses.

You do not want to put yourself in a situation like this, where your business reputation could be damaged, and you could be found liable to pay legal costs to defend yourself and possibly someone else’s losses.

Some other common examples we see are:

  • people who have a lived experience with a physical condition or disease, but no formal medical training
  • people who have successfully built a business without any formal qualifications
  • people who have successfully overcome an adversity and again, don’t have any formal qualifications

Out of a genuine desire to help others and share the benefit of their experience, a person like this might establish a business around coaching or educating others on how they achieved what they did.

The thing is, not everything works for everybody consistently, and there is a risk if you put yourself in this kind of position that you will encounter a person your services don’t work for, and they say the relied completely on what you said. In that situation, a disclaimer might just help you avoid costly court proceedings.

And for something completely different…

Now consider a completely different situation where your website makes it possible for other people to post comments, reviews or advertisements. Forum sites and advice sites like Quora are like this.  All the information posted by third parties could mislead your customers, clients, or visitors of your website, and you could be the one exposed to liabilities because of their actions.

By having a clear and comprehensive disclaimer for your websites, and building behaviour and processes consistent with the terms of your disclaimer, you put yourself in the best possible position to:

  • protect your rights;
  • limit your liability; and
  • disclaim third party liability.

 

Do you need a disclaimer?

Yes, and no.

Being in business involves a certain level of risk and some types of business are riskier than others, and some types of business people are happy with more risk than others.

We need to look at your business, your background, your products and your customers to form an opinion on how important it is for you to use disclaimers.

Generally speaking, we will suggest you do use a disclaimer on your website.

This is because any member of the public that has internet access can see the content on your website, and you are responsible for all the content you put on there. Even if you are not making money from these websites (for example, you might be posting a blog simply for informational purposes), you must still take reasonable steps to ensure that visitors of your website will not be misled by any information you share.

However, if your business is fairly straight-forward and well understood, like a barber or hairdresser for example, you probably don’t need a disclaimer. Everyone knows what barbers and hairdressers do. The worst that can happen is probably a bad haircut, or a bad colour, or a clumsy shave. The risk to the business is the cost of the service, and maybe the cost of fixing the problem, or the customer having someone else fix the problem. The problem probably won’t cost the business more than $300. So, will a disclaimer make any difference? Probably not.

On the other hand, coaching can be a really interesting area where you as a coach should be careful about what you say you can do for someone, particularly when results are going to be dependent on how much effort and application your client invests in doing what you have advised them to do.  If you are offering a high-end coaching package with a purchase price over $10,000, we would recommend a disclaimer.

If you run a website or email list that provides information which is likely to be relied on by visitors  to your website, or subscribers on your email list, you are strongly encouraged to have a disclaimer in place. Particularly if you provide specialised information, in areas such as health, managing money or an industry that is regulated.

If your website provides specific steps in a process or a guide for people to follow, you could also increase your legal risk.

An example might be if you are an online fitness trainer and you post videos that step your clients through a workout. If someone who watches and follows your video injures themself, then you run the risk that they sue you for their injury. But if you have a disclaimer in place which covers your legal obligations and placing some responsibility for your clients behaviour back on to them, you give yourself a much higher chance of avoiding liability.

 

What kind of disclaimer do you need?

You may run different types of websites, and the type of disclaimers you need will vary.

  • Websites

What disclaimer you need depends on whether you use your website to sell products or services, or merely to publish information. If you use your website to sell a product, someone could get hurt when using your product. Whereas if you post information on your website, someone could misconstrue that information and suffer loss as a result.

You might need a ‘no responsibility’ disclaimer which states that you are not responsible for any damages people suffer as a result of using your products or services. Or you might need a ‘views expressed’ disclaimer to inform readers that the information is only your view or opinion and is not intended to be relied upon without advice specific to their circumstances. 

  • Blog

If you intend on giving information on your blog which you are not qualified to give, you need to have a disclaimer to explain the limits of your qualifications and to recommend that people seek professional advice relevant to their circumstances.

If you are not a health professional but provide information about a health conditions, you need to make it very clear that readers should not rely on your information without seeking their own independent medical advice. The same applies for other types of expert advice including financial or legal advice.

If you are merely passing on information, you should indicate that it is work of another and that you are not endorsing it by making it available on your website. 

  • Emails

You may need a disclaimer in your emails, depending on the type of business you run and how you use your email. 

For instance, if you email contains advice that you are not qualified to give, you should include a disclaimer to the effect that you are not an expert in that field, that you are only offering a suggestion and that readers who act on the information do so at their own risk.

A confidentiality disclaimer can also be beneficial if you are sending confidential information. The disclaimer should state that the recipient must not use, reproduce, copy or disclose this information other than for the purposes for which it was supplied. 

  • Social media (eg. Facebook, LinkedIn, Instagram)

Again, this will depend on your business and how you use social media.

One of the biggest risks with social media is that third parties can comment, post, or advertise on your page. A disclaimer to limit your liability for any actions or errors of third parties will be of assistance if you are also monitoring your social media pages and removing posts or qualifying posts and comments that could be misleading.

 

How do you write a disclaimer for your website?

It is not possible to have a disclaimer that could work for all types of businesses or websites. Each disclaimer is different depending on what you do and how you do it. Like we said earlier, we need to look at your business, your background, your products and your customers to form an opinion on how important it is for you to use disclaimers.

To help you decide what you should include in your disclaimer:

Step 1 – Think about what rights you want to protect

Step 2 – Think about what liabilities you might be exposed to

You need to identify the possible risks and scenarios that could expose you to legal liability.

Consider:

  • Warning your readers that your content is merely an opinion and not a fact
  • Alerting your readers to the potential mistakes and inaccuracies in the information
  • Informing your readers that you are not offering professional advice and your content is only informational, and that they should consult a professional before making any decisions
  • Disclaiming liability for any errors in the information that third parties post on your websites (together with a process for reviewing the accuracy of information shared, or making it clear that older posts might not be accurate.

 

When are you not protected by a disclaimer?

If your disclaimer contains terms that attempt to exclude a legal liability that cannot be excluded, your disclaimer will not shield you from liability. If it is contrary to law, it might be void, but if it is legally compliant, it might still limit your potential liability.

Most people get in trouble when they say or do things that are inconsistent with their disclaimer.

Always keep in mind that your disclaimer must be consistent with your behaviour and business processes and any representations that you make, whether on your website or through your conduct. If anything on your website or your conduct creates a different impression for your customer or client, your disclaimer will not protect you.

Your disclaimer also needs to be placed somewhere where it can easily be seen either by customers using your website or receiving your emails or communications in any other way. If your disclaimer is too hard to find or too small that is can be easily missed, it will not protect you.

Conventional website design will usually have a link to your disclaimer in the footer of your website.

 

 

do you still need insurance when you have a disclaimer?

Yes.

Even if you have a disclaimer in place, you should still hold adequate liability insurance to protect business activities. Having a disclaimer does not mean you are guaranteed to be protected from all liabilities. If a claim is brought against you, it is up to the courts to determine the effect of your disclaimer and to what extent your liability is limited. The more vague or confusing your disclaimer is, the more unlikely that it will protect you.

 

 

Want more information?


 A well-drafted, quality disclaimer can help you to effectively manage your customer or clients’ expectations and set the boundaries for your responsibility and liability.

Contact Onyx Legal so that we can work with you to identify the most appropriate form of disclaimer for your business and your customer base. 

Privacy Policy: Collecting and Managing Personal Information

Privacy Policy: Collecting and Managing Personal Information

Privacy Policy: Collecting and Managing Personal Information

Privacy Policy: Collecting and managing personal information

As a business owner, how many times a day do people give you their personal information? Do you think about protecting it, or do you just assume that the systems you have in place will do that? 

Or maybe you don’t think about it at all. 

Does a small business need a privacy policy?

You must comply with Australian privacy laws unless you run a small business with $3 million or less annual turnover. However, you will still be bound by privacy law if your small business does any one of the following:

  • are a credit reporting body (e.g. Equifax, Illion) or
  • are a contracted service provider under a contract with the federal government; or
  • provide a health service or otherwise hold health information (e.g. health practitioners, life coaches, personal trainers, childcare centres); or
  • collect or disclose personal information for a benefit, service or advantage (e.g. operating a lead generation website where you sell the leads).

If you have any customers or suppliers overseas and you collect their personal information, you may now also have to comply with what are called ‘extra-territorial’ provisions of laws from overseas. For example, if you have customers in the European Union, you are required to comply with the General Data Protection Regulation (GDPR), regardless of the size of business. If you have a medium enterprise with customers in California, you now must consider the California Consumer Privacy Act (CCPA).

Some other countries with privacy laws that have an extraterritorial scope include New Zealand, Brazil, Thailand, the Philippines, and Canada.

 

From a practical perspective, can not having a privacy policy really make a difference?

Apart from the legal obligations, there are practical consequences of not having a privacy policy too.

If you want to advertise on social media, or through Google Ads or other platforms, you are required to provide a link to a privacy policy before your advertising can go live.

A lot of international service providers include in their terms and conditions that you must comply with privacy laws to use their services, and they have the right to end your ability to use their services if you don’t.

For example, if you use PayPal you agree with the following terms of the PayPal User Agreement:

You must comply with all your obligations under applicable Australian consumer law, including as a seller by publishing a refunds and returns policy as well as a privacy policy, where required by law.

… you must not: Infringe PayPal’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy.

…To the extent that you (as a seller) process any personal data about a PayPal customer pursuant to this agreement, you agree to comply with the requirements of any applicable data protection laws. You have your own, independently determined privacy policy, notices and procedures for any such personal data that you hold as a data controller, including a record of your activities related to processing of personal data under this agreement.”

What difference would it make to your business if you couldn’t process payments through PayPal?

 

So, what is the point of a privacy policy?

One of your many obligations under Australian privacy laws is that every time you collect personal information from an individual, that person must be able to find out why you are collecting it, and what you are going to do with it.

Posting a privacy policy that you understand and know you can apply, on your website where it is easy to access, is by far the easiest way to share with people what you are doing with their personal information.

 

So, what is personal information?

Under the Privacy Act 1988, personal information means any information or opinion about an identified individual, or an individual who is reasonably identifiable:

  • whether the information or opinion is true or not; and
  • whether the information or opinion is recorded in a material form or not.

And what does that really mean?

Well, for a start, it doesn’t cover information about people who have died, which is interesting considering the legacy profiles some social media platforms are now making available for the families of the deceased, but that is not the topic for today.

It does cover information you collect about your employees and contractors. Many businesses only think about customer information and forget that you also have to protect the privacy of employees, contractors and suppliers.

But what about a practical example:

Imagine a gym where someone is leaving and their trainer turns to another trainer and says something like “She’s never going to lose weight, you should see her mum, she just has fat genes”.

The comment is verbal, it’s an opinion, it refers to a person who can be identified visually, and whose name and other details could be found by looking at the trainer’s schedule. That makes it personal information.

Is there a risk of violating privacy law – Yes. Is it likely to be a big risk to your business? – No. Why not? – Because it probably wasn’t recorded and is therefore difficult to prove, but if another patron overheard it, or the trainer repeated it to someone else, it does start a chain of infringement.

Imagine the same gym has list of all their trainers with their phone numbers on a clip board, and that clipboard gets left on the front reception desk, where anyone coming in could take a quick photo with their phone.

Is there a risk of violating privacy law – Yes. Is it likely to be a big risk to your business? – Possibly. Why? – Because once that information is recorded in a different form, like a photo, your business has disclosed personal information without permission.

Can you see why it is important to understand what you are doing in the process of collecting personal information?

 

When are you ‘collecting’ personal information?

You collect personal information in your business all of the time.

Any time you confirm someone’s name over the phone, whether or not you write it down.  Every time someone fills in a contact form on your website. Every time you add someone’s details to a database. Every time you prepare a proposal for someone or take payment details. Every testimonial. These are all examples of collecting personal information.

This is a broad concept.

It includes getting personal information from any source and by any means, such as the people themselves, social media profiles, other businesses, or even surveillance cameras. In practice, all personal information that you hold will generally be considered information that was collected by you.

Bear in mind that if you generate personal information from some other data you hold, collection may also take place. For example, if you generate a sub-set of information from your database for promotional purposes, you’re effectively collecting that information again. And the practical consequence? – Your privacy policy and procedures should be broad enough to include that kind of activity in what you do with personal information.

How should you manage personal information?

This is where a lot of people get lost and think that having a privacy policy by itself is a cure for all ills. It isn’t.

You are required to manage the personal information you collect in an open and transparent way. What this means is that you must take reasonable steps to establish and maintain internal practices, procedures and systems for your business to ensure its compliance with privacy laws.

Do you have any sort of privacy checklist for small business to help your team navigate what they can and can’t do with personal information? If not, that is a good place to start. What is considered as reasonable would depend on your business.

Think about what type of personal information your business holds, how much information you collect, how your customers might be affected if their personal information was not handled properly, the size of your business, and the time and cost involved in implementing appropriate procedures.

What you are required to do in Australia is comply with privacy law to a degree that is commercially proportionate to your business. So, if you run an online marketing agency with a team of four people, your procedures are not likely to be as complex as a business supplying services to the defence force.

Here are some examples what you could consider implementing:

  • understand what privacy obligations you have as a business;
  • work out when you collect personal information, and why (avoid collecting more than you need for your business);
  • work out what you will do if someone wants to be anonymous, and if you can still deliver products or services if you allow that;
  • work out where you store personal information, and how you use it (do you use a commercial database, or excel, or your phone contacts list?);
  • work out if you share personal information (eg. with a distributor or courier service);
  • decide whether the systems and procedures you use in your business protect, or put personal information at risk of being disclosed, lost or stolen (eg. leaving a mobile phone in an Uber);
  • check that you have faith in the online systems you use and there is limited risk of unintentional access by someone outside your business (eg. information on a white board visible when you are on Zoom, unintentional disclosure of a Google form);
  • work out what you will do if you get a complaint from a customer about the use of their personal information;
  • work out what you will do if someone asks you for a copy of their personal information, or a change to that personal information (eg. change of name or address);
  • include privacy training as part of your induction process for new staff; and
  • annually review and audit your business’s privacy practices, procedures and systems.

 

How do you write an effective privacy policy?

Your next step then is to write a clear and up-to-date Privacy Policy about how your business manages personal information, or get us to prepare it for you. At a minimum, it must contain the following:

  • the type of personal information that you collect and store (eg. contact details, educational qualifications);
  • how you collect and securely store personal information (eg. collect directly from your customer and their public social media accounts, then add to a CRM);
  • the purpose for collecting, keeping, using and disclosing personal information;
  • how your customers can access and correct any their personal information and who to contact in your business;
  • how your customers make a complaint about a breach of privacy laws, and what happens when they do; and
  • whether you are likely to disclose personal information to overseas recipients, and if yes, the likely countries.

Your Privacy Policy will be more comprehensive depending on the complexity of your business and should be tailored to match your internal systems and procedures. A well-written, easy-to-understand Privacy Policy can add to your credibility and help build rapport with your customers.

If your Privacy Policy is made available online, you can provide a condensed version to outline key information, but a direct link to the full policy must be provided.

 

What if you get it wrong?

Privacy law is regulated by the Office of the Australian Information Commissioner (OAIC). The Commissioner can require your business to put in place systems, procedures or training, pay compensation, or apply to the court for fines to be made against your business.

Compensation is usually ordered where information has been disclosed, or where a person has requested access to their information, and it hasn’t been provided in a timely manner.

 

Protect your customers and your business

Having the right systems and procedures in place with a clear and comprehensive Privacy Policy is your opportunity to reassure your customers that you can be trusted, that you are aware of and care about their privacy and information security. In doing so, you are not only complying with your legal obligations but are also working towards building a reputable business. 

10 Ways to Avoid a Joint Venture Fail

10 Ways to Avoid a Joint Venture Fail

10 Ways to Avoid a Joint Venture Fail

Joint Ventures are great for collaboration

Working together with another like minded entrepreneur is a clever way to accelerate business growth, which is why joint ventures remain a popular way for individuals or organisations to collaborate. But before you ‘Give it Away’ (as there’s always room for a Red Hot Chilli Peppers reference in a legal consideration blog), it’s critical to shore up your joint venture’s credentials to ensure a smooth, surprise-free partnership from beginning to end. In this Onyx Legal blog , we highlight 10 ways to avoid joint venture fails. [Ok, so we ended up with 11 – Ed.]

Joint Ventures are usually for a specific and limited project, goal or purpose and may also be limited by time.

1. Who is party to the joint venture?

Establishing a joint venture is no time to be carefree with the details.

Before entering into a joint venture, establish the legal identity of all parties. This means performing ABN and other similar regulatory checks. It might also mean checking driver’s licence details of individuals. 

A client recently came to us with a proposed joint venture, and we could not establish who would pay him the $400k that he expected to receive as his share of profits. The deal fell over when the other party also failed to establish who would pay that sum.

2. How Should You Structure a Joint Venture?

It is important to understand that joint ventures and partnerships are different structures.

A partnership is a long-term working proposition with full legal liability – a commitment to working together into the future.

A joint venture is project or purpose-focused, and facilitates separate parties to continue working on other businesses simultaneously. Joint ventures can be done by contract with each party paying their own tax, but one of the parties must hold the assets relating to that venture (paperwork, accounts, assets) unless it is established in its own identity.

3. What do you want to achieve with your joint venture? 

It’s easy to get caught up in the potential of success and innovation at the beginning of a joint venture, which is why understanding what you want to achieve from the collaboration is so valuable.

We’ve observed web designers, marketers and programmers enter joint ventures expecting to receive a share in profits at the end of the build, only to have ‘goal posts’ moved so regularly they exit the venture – leaving thousands of hours of unpaid labour in their wake.

Failing to understand – or formalise – expectations in a joint venture regularly leads to disappointment.

Put together a clear written agreement covering all the moving parts of your proposed joint venture, and allowing some flexibility for change as your venture grows. 

have a written Joint Venture agreement

Failing to understand – or formalise – expectations in a joint venture regularly leads to disappointment

4. How long should your joint venture last?

How long is a piece of string?

There’s no single answer to this question; the duration of your joint venture is based on the purpose of the project.

Will you be building something – a house or a piece of technology?

Are you going to be running a developing a piece of software or an education program together?

If you are building or developing something together the period of the joint venture might be the development period, and once you have a completed MVP (minimum viable product) you might roll it over into a company and start building a team to run it. 

Where you’re entering a revenue share deal, it might be a two year focused time frame for growing the base income of the business. 

Whilst you do not need to define a hard ‘end date’ to your joint venture in documentation, it’s useful for all parties to understand the purpose of the relationship, and a general timeline to completion of the project, and what completion looks like.

We regularly write in rolling successive terms, such as a one year agreement that rolls over for another year unless someone terminates before the end of the year. 

5. How can disagreements be dealt with or avoided? 

A joint venture agreement should be robust, providing options should parties fail to perform their role, or decide to walk away from the project.

In collaboration with your lawyer and with your project’s specific risks and opportunities in mind, carefully identify pressure points that require clarification and consider an approach to realistic exit should your working relationship end unexpectedly before the project is completed.

Good joint venture agreements remove the element of surprise from projects, leading to higher rates of completion and reduced conflict.

For a two party joint venture, it is a great idea to have some way of independently breaking deadlocked decisions. You could use a trusted third party as a referee, such as a mentor or board adviser. You could also allocated areas of decision making to each party that give one person a try breaking vote on those issues.

6. What if someone wants out if the joint venture early?

Build the possibility of a party leaving the joint venture into the structure of the joint venture to avoid future problems.

The best laid plans of mice and men often go awry, and a party may need to exit the joint venture for any number of reasons. Family life may be under pressure, there could be financial considerations, or health issues to address.

Fairness is key when devising a graceful exit from a joint venture. 

7. What if you want someone else to join in the venture part way through? 

Joint ventures can be created to allow for the possibility of other experts parties joining the project. Sales professionals are typically invited to join in after an MVP is achieved. 

It’s important that you’re working with a lawyer to structure your joint venture for all possible contingencies … which could  include growing your collaborative group.

8. Who will do what in your joint venture?

Formalising a joint venture is no time for pussyfooting around responsibilities or making assumptions about role workloads.

Success in your project relies on clear delegation of work, as all parties will have other responsibilities that could take their attention, in addition to the joint venture.

It’s important to know exactly who will be paying the bills and who will be responsible for particular milestones.

Having difficult conversations early on about the work or outcomes due for completion by exact parties of the venture will save plenty of strife when life gets busy or timelines become blown-out. 

9. What happens if someone fails to live up to their responsibilities in the joint venture?

As with any project, it’s possible that the whole thing could become scrambled eggs.

Of course you don’t anticipate that will be the outcome, but it’s prudent to plan for unlikely circumstances. Think about COVID-19, a virus which has changed the trajectory of the global economy in the space of months. It was nigh on impossible to imagine the world shutting down a year before the corona virus; but there it is.

People can fail to live up to the responsibilities in a joint venture for a variety of reasons, including circumstances beyond their control.

Build into your joint venture contingencies around ‘failure to perform’ and decide what the dissolution of the relationship should look like. Who gets what? What will trigger the dissolution? How will any debts be paid?

These are important matters to discuss with your collaborative partners and your lawyer.

10. Who retains any intellectual property created during the venture, once it ends?  

Often a complex matter to consider, the ownership of intellectual property is the cause of many disagreements.

If the joint venture does fail, there is likely to be an argument about intellectual property and who owns what. If you can work out IP ownership at the commencement of your joint venture, you’ll design a logical way of dealing with the matter if you fall out.

Maybe each party only walks away with what they contributed; maybe each party walks away with one complete copy of the created intellectual property.

Certainty around what will happen at the time of the exit gives everyone confidence and reduces the risk of legal action. 

11. How will the project be managed?

A joint venture teaches entrepreneurs a whole lot about project management and communication. There are many moving pieces you and your partners will need to consider:

  • planning
  • stakeholder relationships
  • reporting
  • regular meetings and agendas
  • cashflow 

While it is appropriate for different roles to be attributed, a single party needs to be appointed to ensure accountability across the whole of the joint venture. You will need someone with the energy and drive to ensure that things happen. 

Flexibility must be built into this role, and an allowance to break ‘deadlocks’ in decision making.

Many’s the time we have observed joint ventures fall apart when the directors of the governing entity failed to design a mechanism for change, independent of the warring parties. 

Joint ventures are a terrific way for business owners to collaborate, to stretch their skills, test ideas, and to innovate. A well-designed joint venture allows for the clear division of work and responsibility, provides safeguards for failure and disappointment, and deals with the sticky stuff of business relationships before they become complex.

At Onyx Legal we support business owners to come together with like-minded partners in joint ventures, creating structures that respond to your unique projects, packed with safeguards to keep you as confident and safe as possible.

Our key takeaway for joint ventures?

Think on it.

Clarity at the beginning of a project leads to better results in a joint venture, and the chance everyone will meet or exceed their expectations. 

How can Onyx Legal help you?

Joint ventures have a contractual foundation.
You can form a joint venture with a handshake, or you can put a little thought into your expectations and negotiate an agreement that clearly sets out each party’s rights and obligations, as well as exit opportunities. We also highly recommend incorporating sensible dispute resolution mechanisms that will support the joint venture moving forward. If you are already in a joint venture, we can review the contract and clarify any legal rights and obligations you don’t understand.
Using Copyright Material Online

Using Copyright Material Online

Using Copyright Material Online

What is copyright?

Copyright is the legal protection given to any kind of work (eg writing, movies, website content) which has been created by a person. 

Copyright gives the owner of the copyright in the works the exclusive rights to:

  • reproduce the works
  • publish, perform or otherwise introduce the works to the public for the first time and any other time thereafter
  • control the importation of the works to other countries
  • rent the works out to other people
  • assign or license the rights in the works to others. 

There is no need to pay for, register or apply for copyright in any works, it is something that is automatically given when new works are created. 

The work does not need to be published, or made available to the public in order to be protected by copyright, nor does it need the copyright © notice. Protection is free, instant and automatic as soon as the work is created.

Copyright protects a wide range of works which include:

  • written work (“literary works”), which include newspaper and journal articles, songs, poems, screenplays, novels etc
  • computer programs
  • compilations, which include things like albums 
  • artistic works, such as paintings, drawings, photographs, sculptures, architectural plans, buildings etc
  • dramatic works, such as screenplays, theatre works and choreography
  • live performances
  • musical works
  • films 
  • broadcasts, such as television or radio broadcasts
  • published editions (copyright applies separately to the layout of a publication and to the actual content of the publication)

Some works which attract copyright protection, have copyright in more than one aspect of the works.

For example a musical recording will attract copyright in relation to:

  • the lyrics of the song
  • the musical composition of the song
  • the actual recording of the song
  • and also in relation to the live performance of the song.

Who owns copyright?

Although parties may agree to change the standard position on copyright, generally, the person who creates the work is the owner of the copyright in those works.

There are a few exceptions to this rule however:

  • Where work is produced by an employee for the employer. By law copyright belongs to the employer. When signing a contract for employment, the employee will usually confirm that they assign to the employer any copyright in work produced by the employee as part of the employee’s job.
  • Where work is produced by a freelancer, such a photographer, the general position is that the copyright will be with the freelancer. The exception to this is where somebody commissions a freelancer to produce work for a private or domestic purpose. For example, the photos produced by a photographer at a wedding; copyright will sit with the bride and groom, not the photographer unless there is something different in writing between the parties.
  • In relation to film and sound recordings, usually the copyright will be owned by with whoever paid for the recording to be made (eg. the producer).

What are moral rights?

Even if the creator of the works does not own the copyright in the works (such as when an employee develops some work for their employer), the creator still has what is known as ‘moral rights’.

Moral rights give a certain amount of protection to the work of the person who created the works. These rights include:

  • The right of attribution, which means the creator has the right to be given credit for their work when used by anyone else – including the owner of the copyright. For example if a photograph appears in a magazine, although the magazine may own the copyright in the photograph, the photographer still has the right to be given credit for their photo by having their name put on or next to the photograph.
  • The right to defend against any false attributions to their work. That is, if someone gives credit to another person for the creator’s work, the creator may take legal action against this. After this change in the law a variety of people who had had books ghost written suddenly started acknowledging the true writers for their ‘contribution’.
  • The right to take legal action if their work is treated in a way which has a negative impact on their reputation. Like a building being defaced.

A person can only give up their moral rights by agreeing to do so, in writing.

attribution of works

Attribution is like avoiding plagiarism.

Attribution of works means that, in your work, you give credit to the other people whose work you have used within your own work. This ensures that you do not breach the creator’s moral rights.

Attribution of another person’s work may also be necessary where you use material under a creative commons license or where you intend on relying on a ‘fair dealings’ exception to copyright infringement. These are discussed below.

How do I properly attribute the work of someone else?

If the creator of the works has not specified how they would like to be attributed, then as long as your attribution is clear and obvious enough that the audience to your work knows who the original creator of that particular part is, that is all that is needed.

WHAT DOES ‘FAIR DEALINGS’ MEAN – AUSTRALIAN POSITION?

‘Fair Dealings’ are those situations where you may use someone’s work (which would normally be protected under copyright law), without asking for their permission to use it.
There are very defined circumstances when this can be applied. To fall under the ‘fair dealings’ category, the use must be for one of the following reasons:

  • research or study 
  • criticism or review – this involves making a genuine review or critique of the material or the ideas underpinning the material, there cannot be ulterior motives for the review/critique 
  • parody or satire 
  • reporting news – the reporter must be using the copyright protected works for the main purpose of reporting the news, not for any other purpose (such as a funny article which is actually intended to entertain the audience rather than report the news)
  • and for the purposes of advice by a lawyer, trademarks or patent attorney.

To rely on any of the ‘fair dealing’ exceptions to copyright, you must be able to prove that the use does in fact fit into one of those categories above, AND that the use of the work in question was also fair in the context.

In addition, if you use copyright protected works without permission and plan to rely on a ‘fair dealings’ use, then you must acknowledge the source and the author of the original works in your own work (see attribution above).

What does ‘fair use’ mean – United States position?

In the United States, there is a similar concept called fair use. The fair use exemption is wider than the Australian concept of fair dealings. 

The United Sates provision includes purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. These categories are more flexible than the strict Australian counterpart. 

To determine if a use is a ‘fair use’ the following factors should be considered:

  • The purpose and character of the use, including if the use is of a commercial nature or is for nonprofit educational purposes. The more commercial the intended use, the more likely the fair use exemption will not apply. 
  • The nature of the copyrighted work.
  • The amount of the portion used in relation to the copyrighted work as a whole, and whether it is a substantial part. Substantial does not necessarily mean a lot. It can be a small but distinctive part.  
  • The effect of the use upon the potential market for or value of the copyrighted work. 

So, if you plan to use copyrighted material for one of the categories (eg news reporting) then you may be able to do so if the use would be fair (based on a consideration of the above factors). In general, the word fair means the use is not harmful to the original creator of the work. 

In this example, the use of an audio clip (like a quote from Winston Churchill) or a video clip (from a movie or television program) to emphasise a point in a podcast, would be likely to be considered fair use.

What is a creative commons licence?

A Creative Commons license is a license that the owner of copyright may choose to use to allow other people to use their works without any payment or need to ask permission for use.

There are various Creative Commons licenses which set out the different terms of use according to the type of license chosen by the person who owns the copyright. Some licenses may only need you to give credit to the person whose work you are using. Other licenses will prevent you using that particular work for commercial or profit generating reasons etc. 

WHERE CAN I GET CREATIVE COMMONS LICENSE MATERIAL FROM?

Material which is made available for you to use via a creative commons license (ie. you don’t have to seek the copyright owner’s permission before using it), is available right across the internet.

One good place to start is creativecommons.org.

This website allows you to search a range of sites which offer creative commons licensed material for your use. 

WHEN DO I NEED PERMISSION TO USE COPYRIGHT MATERIAL?

As a general rule you must get permission to use someone else’s works whenever you want to use those works in a way which is reserved for the exclusive use of the owner of the copyright. ie. whenever you want to publish, communicate, reproduce, perform or alter the works, or any part of the works.

Even using a small part of some copyright protected works could see you infringe copyright. If the part that you want to use is a “substantial” part, that is it is an “important, essential or distinctive” part of the works, then you will need to get permission from the copyright owner.

As an example, still shots from movies and television programs are something you should, in theory, seek permission to use. However, unless you are using that still for a commercial purpose (eg. putting on mugs or t-shirts and selling them because of the image) you are unlikely to have any problems.

Some good questions to ask yourself, “Am I using somebody else’s work?” If yes, then: 

  • Has the creator of that work used any skill or labour to create the work that I would like to use? For example, have they gone out to a statement from a source themselves, or have they copied the statement from somewhere else? If they made the effort to get the statement themselves, that act has required some skill and labour from the copyright owner, whereas copying a statement obtained from another source would not. 
  • Do I want to use a “substantial” part of the other person’s work? ie. Is it an important, essential or distinctive part of the work that I want to use? The word “substantial” does not indicate the amount of the work that you want to use, as a percentage for example, just the overall significance of what you want to use.

If you answer ‘yes’ to these questions, the safest option is to seek permission from the copyright owner to use the material in questions.

There are some exceptions to this rule however, where there is: 

  • a ‘fair dealings’ exception
  • creative commons license, or
  • copyright has expired (generally 70 years after the death of the creator however there are various times depending on the year it was created or first published).

WHERE DO I GET PERMISSION TO USE COPYRIGHT MATERIAL?

A good place to start when looking for permission to use the work of someone else, is with the publisher of those works.

Another place is with a copyright collective agency. These are agencies which grant permissions and receive payments for copyright licenses in a range of copyright protected industries. There are many such agencies right around the world which operate locally (such as across Australia) or globally.

In relation to use of government owned materials, you should check the government websites for permitted use for each particular government.

How can Onyx Legal help you?

If you want purchase copyright work, license copyright work, ensure your employees understand that you own copyright in their creation, protect your copyright work, or defend a claim of copyright infringement contact us.

The Alarming Rise of the Fake Self-Assessing Tax-Exempt Private Foundation in Australia

The Alarming Rise of the Fake Self-Assessing Tax-Exempt Private Foundation in Australia

The Alarming Rise of the Fake Self-Assessing Tax-Exempt Private Foundation in Australia

The Alarming Rise of the Fake Self-Assessing Tax-Exempt Private Foundation in Australia

When things occur in 3s they tend to attract our attention.

In last few months we’ve encountered three people who were stunned to find out the foundations they had formed with all good intents and purposes were in fact, fiction.

Unfortunately, we haven’t been able to persuade any of these misguided individuals into telling me where they got their information in the first place. In fact, when we told the first prospective client about the nebulous nature of his foundation, he blocked our phone number and emails.

When a long standing business client of ours approached us for legal advice just after Christmas, querying the legality of providing intellectual property as a volunteer for the self-assessing tax-exempt private foundation he had established after significant research, we balked.

How can educated, intelligent individuals be misguided into believing that “personal sustenance” of the founder is a legitimate, tax free distribution? Or that a foundation is legitimate when its founding documents specifically deny the rule of law?

If you are failing to lodge tax returns and claiming your foundation is private, tax exempt and self-assessing, at some stage you are likely to get caught for tax avoidance.

IF IT SOUNDS TO GOOD TO BE TRUE…

We should start by saying that we are not tax lawyers and the statements in this article are for general educational and informational purposes only.

If you are an individual in Australia receiving more than minimum wage, you will be paying some tax. If you operate any type of business in Australia, other than an international business which uses related cross boarder transactions and tax treaties to minimise tax, then your business will be paying tax on any profits.

Even charities and not-for-profits are not exempt from every form of tax, and they still submit annual reports to substantiate income and liabilities.

Although it is not uncommon for people to look for ways to minimise their tax obligations, if someone is suggesting that you can establish a foundation for the purpose of avoiding paying tax, please do not believe them!

No matter how a foundation is established, if your personal expenses such as your rent or mortgage, car payments and food are being covered by the foundation, then those payments are likely to be considered your personal income, and taxable.

In 2019 the Supreme Court of Tasmania rejected an argument proposed by members of the Beerepoot family that they were not obliged to pay tax because they didn’t own anything. They argued their possessions belonged to God and to be answerable to an external entity such as the government, would be going against God. Their failure to lodge tax returns did not absolve them of their obligations, and they were each ordered to pay more than $1 million in taxes and penalties.

How to Tell if Your Foundation is a Fake?

If your foundation is not recognised under a law, then it is fake. Start by reading the founding document.

Having three very similar founding documents to reference, there are clearly a couple of pro-forma template “Articles of Association” going around to help people establish fake foundations. “Establish” might be a strong word because the documents we’ve seen don’t create a foundation or other entity at all.

Some of the words that should trigger alarm bells are:

  • sentient living souls
  • natural sentient people
  • divine attributes
  • tax-exempt
  • non-government organisation
  • sovereign rights of humankind
  • environmentally sustainable self-sufficiency of humankind
  • imprescriptible and unlegislatable
  • domicile on the land mass commonly known as Australia
  • involuntary servitude
  • unalienable rights for sustenance
  • bona fide compensation for services rendered, expenses incurred, sustenance or surplus on behalf of the foundation
  • not to be lodged with any public or government agency
  • autograph

Each of the documents we have received includes at least one paragraph which claims that being human creates some form of natural right which cannot be removed or controlled by government or law. This is an extension of the “Freeman on the land” philosophy which says essentially that “the law doesn’t apply to me unless I say it does”.

Here is a sample:

‘Natural Innate Status/ Sovereign Rights’ mean the natural rights of private men and women, their divine attributes, to love, to liberty, to independence, to privacy, to remain silent, to give and to receive, to apply their natural energy, to think, to breath, to treat others the same way as they would like to be treated, to apply effort and to work, to take decisions, to increase their capacity, and to reserve all natural divine law rights which are unalienable, imprescriptible and unlegislatable, and to express and include their soul infused nature.

Don’t be fooled.

Unless you have some diplomatic immunity from another country, when you are in Australia, Australian law applies to you, over and above any spiritual or religious belief you may have.

There is no such thing as an “innate status” or “sovereign” right of an individual at law.

Some of the wording of the Articles assumes that “privacy” is some form of enforceable right separate from law, and something that validates keeping foundation records private.

Here is another sample:

The Foundation is a private Foundation and as such operates privately, not revealing any of the private information related to its operation to any public or government agency or any purported legal authority.

One of the side effects of attempting to exclude the law is the creation of something without legal basis or enforceability. The privacy of personal information is protected by law, but there is no inalienable right to privacy of any entity or foundation by virtue of its alleged existence.

If you don’t notify a government agency of the establishment of a legal entity separate from you as an individual, there is no separate legal entity and you as an individual are personally responsible and liable for any action taken or omitted by, for or on behalf of the fake foundation.

a self-assessing tax-exempt private foundation is no more than a house of cards

But it’s a Non-Government Organisation (NGO)!

What is an NGO?

An NGO can refer to different types of organisations depending on where you are in the world.

Generally speaking, they refer to organisations legitimately established somewhere in the world, which may work with government, or with government funding, to provide community support in some form or another. International aid organisations are often NGOs.

In relation to the United Nations, NGOs can be described as “any non-profit, voluntary citizens’ group which is organised on a local, national or international level. Task-oriented and driven by people with a common interest, NGOs perform a variety of service and humanitarian functions, bring citizen concerns to Governments, advocate and monitor policies and encourage political participation through provision of information. Some are organised around specific issues, such as human rights, environment or health. They provide analysis and expertise, serve as early warning mechanisms and help monitor and implement international agreements. Their relationship with offices and agencies of the United Nations system differs depending on their goals, their venue and the mandate of a particular institution.

Just because you call something a non-government organisation does not mean that it has no obligations at law. NGOs in Australia are established and recognised legal entities, being either incorporated associations, public companies or registered foreign entities. All are registered and have reporting obligations. 

How to establish a Real Foundation

Under Australian law, you have three or four options to set up a real foundation, all of which involve the law and notice to a public or government agency. 

You can establish:

  • an unincorporated association (small local sporting or community clubs)
  • an incorporated association (state-based sporting or community groups or charitable organisations, also membership associations)
  • a company limited by guarantee (for national organisations, big or small)
  • a trust (often used by families or individuals wanting to establish a fund for contributing to charity)

None of those entities will be properly established without reference to the appropriate law. This is typically done within the founding document. Some examples include:

  • Subject to the Associations Incorporation Act 2009 (NSW)…
  • The company has all the powers of a natural person and a body corporate. That includes powers expressly or impliedly conferred by the Corporations Act 2001 (Cth) or by law. 
  • Subject to the laws governing trustees at the Place of Governing Law [which is then defined in the document]

Tax status is not independently chosen by the foundation.

Not-for-profit organisations must apply to the ATO for tax exemption, and it is generally limited to income tax exemption. So, GST (goods and services tax), PAYG (pay as you go) and FBT (fringe benefits tax) will usually still apply, and the foundation must report and meet its ongoing obligations. 

Genuine Belief in Creating a Better World

A strong theme in the foundation documents I have read is the intent to take action to create a better world for all humankind. That is an admirable goal. Unfortunately, the fake foundation is not the way to get there and is likely to create personal difficulties for you down the track.

If you’ve inadvertently been swayed into thinking you are doing something good for the world in establishing or becoming involved in one of these fake foundations, don’t worry. Take a deep breath and acknowledge that no one is perfect and all of us get caught out from time to time. Now you have the opportunity to do something about correcting your situation.

We strongly encourage every person who suspects they may have become involved in a foundation that displays any of the elements highlighted in this article to seek appropriate legal and tax advice. Now. 

How can Onyx Legal help you?

Get the Right Business Structure for You
Make a time to speak with someone in our team about what business structure fits for what you aim to achieve (avoiding the fake foundation) and we can help you get the right structure set up properly to avoid nasty surprises in the future. 
Joint Venture Advantages and Disadvantages

Joint Venture Advantages and Disadvantages

Joint Venture Advantages and Disadvantages

What is a Joint Venture?

Possibly your first question will be “What is a joint venture?” and then possibly “How is that different from a partnership?”. And yes, it is commonly referred to as a “JV”, but first question first.

A joint venture is an alliance between parties for mutual benefit. Still doesn’t really explain things, does it?

Where different companies that might not even be in the same industries see an opportunity to work together for mutual benefit without giving up any of their core business, that is a joint venture.

Joint Ventures are usually for a specific and limited project, goal or purpose and may also be limited by time. They allow each of the parties to leverage the resources, technology, finance or markets of other parties, for mutual benefit.

Property developments are often completed by joint ventures, where each party contributes different resources or expertise to complete the project. One party might have all the knowledge necessary to set up, manage and complete the project, another party might own the land and the third party might be a builder. By forming a joint venture, they all limit their risks to the areas where they have knowledge and experience and get to participate in a project that would otherwise be out of their league.

Telecommunications companies might form joint ventures to construct and use infrastructure that is costly to build and maintain and would otherwise be underutilised. They each gain access to a necessary resource, but at a reduced cost.

Its also common for joint ventures to form between foreign companies wanting to break into a new market where there is an allied provider who already has their customers in that territory. Consider a home and contents insurance company that teams up with a car insurance provider in a market where they don’t currently have a foothold, being able to increase the variety of insurance products offered to the car insurer’s customer base.   

Joint ventures can involve more than two parties and can involve different types of entities, such as a mix of individuals, companies and trusts. There is no specific formula. Some joint ventures are formed by contract and some are formed as companies where each joint venture party owns shares. An incorporated joint venture is more likely to become a saleable asset in the future than an unincorporated joint venture.

Famous Joint Ventures You Might Not Have Heard About

Some recent international joint ventures include the following:

Haven – This health care focused joint venture was formed in 2018 between Amazon, Berkshire Hathaway and JPMorgan Chase. Think about the benefits each party might be contributing to the venture. Amazon has amassed huge amounts of data on consumer spending and is increasing its data collection into our homes with Alexa and Amazon Prime. Berkshire Hathaway has been around for 180 years accumulating incredible knowledge and experience in operating successful businesses and understanding market changes. JPMorgan Chase is an investment bank. The stated goal of Havel is to simplify insurance benefits, improve healthcare services and reduce the cost of health care services and prescription drugs.  

Self-driving cars – Google’s Waymo self-driving division has joint ventured with Jaguar Land Rover and Chrysler rather than building cars themselves and the car manufacturer doesn’t have to start its self-drive tech from scratch. Volvo and Uber, Honda and General Motors’ Cruise Unit and most recently, Hyundai and Aptiv have teamed up, all for similar reasons. Predictions are that the motor vehicle industry will be dominated by tech companies in the not too distant future.

Cosmotec – is a joint venture between the Sumitomo Corporation Group and a Brazilian based cosmetics company, with a view to gaining access to one of the world’s largest cosmetics markets.

Joint Venture Examples

For small business we see a lot of joint ventures where parties collaborate to develop a product or service they couldn’t offer on their own. Some very common joint ventures include collaborations between:

  • software developer + industry expert
  • web or app developer + industry expert
  • digital marketers + tradies
  • digital marketers + professional services
  • digital marketers + any business that needs leads
  • salesperson + any business that needs to convert leads
  • professional onboarding or training + any business with a high demand for bringing on new staff
  • international company + local distributor
  • industry expert + allied industry expert
  • property owner + property developer
  • financier + any business needing capital

We’ve already talked about some joint venture examples, so perhaps we should also look at the characteristics of a joint venture, or examples of the kind of provisions you’d expect to see covered in a joint venture agreement.

Governance/ Setup

  • there is usually a joint venture agreement setting out each party’s rights and obligations, as well as what will happen to any venture assets at the end of the project
  • the proportionate interests of the parties are described in the joint venture agreement, sometimes 50/50 and sometimes a different proportion
  • the joint venture agreement should set out how decisions will be made and any deadlocks broken and also provide for prompt dispute resolution to avoid holding up the project

Control

  • each party has a proportionate interest in the revenue or profits of the joint venture, but that may be different from their level of authority in decision making – investment partners are sometimes silent partners to a joint venture, meaning they don’t have a say in how the project is conducted
  • each party to a joint venture continues to control and operate their own business independently to the project
  • transactions may be recorded separately by the parties involved and invoiced back to the venture, or accounts will be maintained so that each of the joint venture parties can separately account for their contributions and any distributions they receive

Termination

  • what happens to the assets of the venture, particularly intellectual property when the project ends?
  • are the parties restrained from competing with the joint venture for a period?

What is the Difference Between a Joint Venture and a Partnership

Partnerships are generally long-term whole of business ventures whereas joint ventures are often project specific side gigs. In a partnership you also agree to take full responsibility for the partnership liabilities, whether you created them or not, and even if you didn’t know they were created by one of the other partners.

We generally discourage people from calling a party a joint venture partner or calling their venture a joint venture partnership. In fact, we prefer joint venture and partnership not to be mentioned in relation to the same project.

Some comparisons between a joint venture vs partnership

Benefits of a Joint Venture

The benefits to a party in a joint venture will depend upon their goal in entering the arrangement in the first place. Some common benefits of joint ventures include:

  • business diversification
  • entry into new markets
  • new distribution channels
  • leverage expertise of another party
  • flexibility
  • limited scope
  • defined risks
  • defined rewards
  • potential to create saleable asset
  • reduced costs
  • economy of scale
  • strategic information sharing

Risks of a Joint Venture

One of the scariest parts of going into a joint venture for small business owners is that the other party won’t be as committed to the project as you are, and you end up doing everything yourself. We’ve seen it happen.

One of our digital marketing clients stopped joint venturing when they realised that they were doing everything for the venture and the other party was sitting back and doing nothing. Our client had the team and the methodology and the impatience to get things moving, but each joint venture became a project where they should have simply been paid for their digital marketing services and ended the relationship after delivery. While we were able to exit them from all agreements without too much fall out, it put their business back 12 months and impacted their revenue goals.

Your main risks are the same as any business venture, loss of time, loss of money, loss of trade secrets or other intellectual property, loss of staff and reputational risk. Weigh up the benefits against the risks, mitigate your risks and consider your options. 

How can Onyx Legal help you?

Joint ventures have a contractual foundation.
You can form a joint venture with a handshake, or you can put a little thought into your expectations and negotiate an agreement that clearly sets out each party’s rights and obligations, as well as exit opportunities. We also highly recommend incorporating sensible dispute resolution mechanisms that will support the joint venture moving forward. If you are already in a joint venture, we can review the contract and clarify any legal rights and obligations you don’t understand.