6: Keeping It Legal

6: Keeping It Legal
In this weeks episode, we're "keeping it legal" with Brendan Long of Celtic Legal. We talk about all of the legal issues people get wrong when it comes to the online aspects of their business.
 
 
 

Darryl: Welcome to My Bloody Website, the show where we talk all things online for small and medium business owners or executives who still refer to their bloody website. I'm your cohost, Darryl King

Edmund: And I'm Edmund Pelgen.

Darryl: Welcome, Edmund. Very special episode we've got today. How're you going?

Edmund: Not too bad. Episode number six. How about that?

Darryl: That is. Episode number six, Keep it Legal. Why it's so special today is we have an esteemed guest by the name of Brendan, who's going to- Well, he's our first guest. He's gonna talk some legal matters with us, which is important.

Quick bio of Brendan. He's an Irishman become Australian. He can talk about that if he needs to. He came to Australia and is presently on year nine of a one-year plan. Sounds like the convict stories, but anyway, that's another thing. He started Celtic Legal almost two years ago. He's in Brisbane. He's in Brisbane just like myself, and he was previously at a Brisbane city law firm for six years. Welcome Brendan.

Brendan: Good afternoon, good day gents. How are we?

Edmund: Not too bad.

Darryl: Very, very good. Thank you.[crosstalk 00:00:58] it's great to have you. Keeping it Legal. What we want to talk about today is the things that people often don't do, and I could say it's from laziness, but I think in a lot of cases, they just don't know where to start, or they don't realize it's a problem. People go online. They go to apps. They go to websites. They do things. They're online. They do stuff on social media. All of these things have an implication for their business. Even if they're a sole operator, doing stuff, don't realize there's an implication for them. So we thought it would be a great time to get an expert in to share some of the insights, and while Brendan is practicing in Australia, a lot of these things cover any country in the world. There are laws relating to these matters. Obviously, get your local business legal advice when you follow up on these. These are pointers and tips you need to understand or think about to do your online business better.

So, with no more intro, Brendan, what sorts of things, in general, the businesses just need to cover off, think about, when online? What are they doing? A start, privacy policy and things like that, but what are all the basics they need to cover?

Brendan: Well, the biggest thing, Darryl, that you always look at for anyone that... Everyone is an expert in their own field, and when something comes in that's not in their field, you know, in a legal matter, one of two things normally happens. It's either panic, or avoid. Panic means something's come in. It's a deadline that you think is unrealistic. You don't know what to do. You're running around like a headless chuck, and you end up probably trying to do it yourself somehow, and then realizing that what you thought was a big hole is actually a small hole, but you just dug a big hole. You're in big trouble then, because of what you sent back.

The second one is, obviously, the avoid. Something's come in. You don't like it, so you just avoid it and hope that it goes away quietly. Unfortunately, that's not how things happen. From that point of view- I mean, everyone speaks to their needing, and that's what they do when something outside of their little spot. That's a natural reaction. The ideal scenario will be that, any small, medium or large business, but particularly a small, medium will have a good core of trusted people. I would say that a lot of them are small directors, operators, family that they will be able to trust for the bookkeeping, perhaps, or simple data entry. Outside that, there should be, if there's an outside bookkeeper that you can trust, there's an outside accountant that helps you, that you can rely on for advice- And a lawyer should be in that sphere.

Darryl: Make sure you've got a lawyer, really. That's point number one, isn't it? Don't not have legal advice.

Brendan: Correct. You should be able to ring a lawyer either a friend of a friend, or somebody you've used before. Someone that, if something urgent comes in that you can ring Joe or Mary Blogs immediately and get advice that you can trust because you know who they are. You don't want to have yourself set up so that the first time you talk to a lawyer is in a panic at five to four and something is due at four.

Darryl: If we step back from that- So that's situational, tactical of dealing with "Hey, something's come up" So, I've just had a complaint from a customer threatening action or a supplier, whatever." Before I even get to that, I've gotta put a website up. What things should that legal advisor- What should I be getting help with from a trusted legal advisor to protect the way I represent myself? And I spoke about privacy policy before.

Brendan: Yes.

Darryl: You know? There are a lot of people who can cut and paste those from some other place.

Brendan: And that's exactly right. Everyone says "Yep. Website done. Job done," but forget about what's actually on the website, and think "Well hang on. What am I doing? Am I taking information?" My "Contact Me" page, for example. What data is Brendan putting in there when he wants to contact? He puts in his first name, his last name, email address, phone number. Some people want an address and some short comments. And then what are you, as a business owner, doing with the data you received? What are you doing?

There's a privacy app in 1988, it's quite far-reaching in the scope that it goes to, but privacy's really developed in the last 20, 30 years, but particularly in the last ten, because with WikiLeaks and Panama Papers and all of that, data is important.

A lot of people don't even know... An inquiry comes in, something, such and such happens, and they just delete the email. Most people don't even know where that data is now gone. It's deleted off my inbox. That's all I care about.

Where are you? Are you on the Cloud? Where is your data being sent? Is it also in Australia? Have you told the person that it could be outside Australia? Have you got their consent? And another thing is, as well, with Cloud-based being the way it is, and- It can store stuff endlessly in the Cloud, so there's no real cleaning of servers and things like that happening as much, I don't think. That way, then, that type of data isn't actually deleted. Have you got consent to keep it?

Darryl: Well it's a really good point, because I had my privacy policies redone a couple years ago, and I've had my agency for 20 odd years, so the privacy policy I did have was considered about 12 years out of date, and those sorts of things you mentioned were inserted into it. "You hereby give permission that we may store data here, here, here, and here." We actually had to list things like Dropbox and Gmail, and areas like that as part of the privacy policy.

I wouldn't even have thought of that, and I consider myself to be quite across concerns about data storage, so I imagine for a lot of small businesses, they just don't even think about it at all.

Brendan: And that's it. If you're a small business and you're a whole seller, and you do your wholesale meet, "Why do you care about data?" is what most people are thinking. But the problem is that it's not about you, it's about your customers and people are contacting you.

Edmund: Brendan, can I ask [crosstalk 00:07:14]. Do you have any examples of situations or problems that can occur because they ignore this, because we're talking about the privacy- The reality is, the business owner's going "Eh, I still don't care about it." Well, what can happen, you know? What is something in terms and conditions, maybe, that they left out about their online invoicing or their privacy issues. What can actually happen? What's a situation where someone is sued because of this, and they've not had their legals covered?

Brendan: There's two points that can actually end up hurting the business, and they both hurt- Bottom line monetary, which is, all of a sudden, people have three eyes and ears on them, because that's the thing that they're actually affected by.

Firstly, if, as you mentioned, you don't have a privacy clause in your terms and conditions, and your terms and conditions themselves are a little bit off, copied from a competitor, perhaps, and there's kind of a privacy thing in there, but it's wrong or outdated, then it throws the whole terms and conditions out of order, so if there might be twenty terms and ten of them have flaws, because you've copied them from an [inaudible 00:08:24], all of a sudden, any court, which is where no one wants to go- But, any court look at them and say "Well, we can't apply those terms," because there's so many bad parts to it that you can't enforce those terms.

So all of a sudden, then, you can underline your terms that say "All returns must be within seven days." So you can't rely on any of the rest of them, and can't rely on "Oh, you're allowed charge interest of 10% instead of the court average of 6."

Darryl:  So I mean- [crosstalk 00:08:54] So that example... Someone could come back a year later, and return the goods, and enforce it, which obviously has huge implications. You might have to replace them or refund a thousand dollars. So what I thought was a simple online e-commerce transaction, goods delivered, end of story, because I didn't tick the right boxes, I could suddenly be out of pocket for all of that cost.

Brendan: You might think you've great terms in place, or you have terms in place and covered, but if all of the terms are terribly worded and are not enforceable, they're all gonna be set aside and you're stuck with whatever a judge is gonna decide, and they don't care about your commercial business. They're just gonna try and [inaudible 00:09:32].

Darryl: Yeah. And so, that was- Is there a second point? You were saying, there was a couple of things that hurt.

Brendan: Well, then with regards to the actual breach of the privacy policy itself, with it being so topical, unless you can provide, on request, data and [inaudible 00:09:54] within 28 days of a notice, you're gonna get fined.

Darryl: Wow. So if someone comes and says "I believe you've breached my privacy," and I take that to court, you get issued with it. 28 days, you've got to be able to validate and respond with...

Brendan: And the problem is, as well, is that... Let's just say, as yourself, Darryl, you've got a complaint against me about data. You just head away off to the office of the Australian Information Commissioner, and they'll run the case for you, so you're not even out of pocket, and I am.

Darryl: Yeah.

Brendan: You know? So, because they're there for the consumer and the data protection, and that's what they do. They make sure that things like spam ads, for example, are copied in and complied with, so you make the report, it's like onwards [inaudible 00:10:37] effectively for these things. You make the complaint, they run it, they investigate, they spend the public parts doing it, and you're gonna get fined at the end, and Darryl, you're just gonna get- Possibly get damages [inaudible 00:10:50] from me.

Darryl: And it could be for something quite small. I mean, the breach of privacy is making my data available in situations where it shouldn't be, or not protecting it, is that correct?

Brendan: Absolutely, and often, smaller things cause the biggest problems. It'll be one person that you've managed to fall out over the most minuscule thing, that attacks you on everything. Finds a loophole and just keeps hitting it, and just causes life an absolute nightmare for you.

Darryl: So what is the current fine for a breach of privacy in Australia, just as an example?

Brendan: Well, it's paravent as well. So if, for example, you report, and then the investigator finds that "Oh, it was ten people that did that." That's ten fines. You won't get one fine.

Edmund: Oh.

Brendan: Sorry [inaudible 00:11:40].

Edmund: No, my question was, that's... It's horrific thinking about it like that. How does a small business protect themselves? Do I just get a lawyer there to prepare my proper documentation, because it sounds like there's a little bit of education here as well, right? That they're not even aware of what they-

Brendan: That's exactly it. The biggest thing is that... Do it before anybody ever causes a problem. So, I'll give you an example of why not to copy terms. I had a client in earlier this week who had sent in an agreement that she wanted me to look at, said "Oh, I've been using it for a while." I had to draft it up by a lawyer, and I went back and I said "I don't think you have."

She said "No, no, there is." And I said "No, I think you've copied it from someone who had a draft [inaudible 00:12:26] on the lawyer. She said "Oh, yeah, it's him."

I said "No it's not."

Edmund: Classic.

Brendan: He was in Queensland here in Australia, and all the acts were New South Wales acts, so they weren't applicable up here. They might as well be in a different country, and none of it was federal legislation, so it was all caught in. She was trying to protect herself from civil liability, and she hadn't even gotten the right act, so she was completely unprepared.

It read very well, but the wrong legislation.

Darryl: I think it happens a lot, and being on the development side, I get it a lot. It's a question I ask a bunch. I get "Terms and conditions, what are they?" "Well, there's all sorts of things about how to use the website. My business terms-" "I don't want them all up online." "Well, so you want people to pay you money? You want people to engage with you?" "Well, I'm just getting leads." "Yeah, but, they're interacting with your business and then-" "Oh, well, you know, surely Channel 9's privacy policy, I can copy that there. You know, they've got bigwigs there." It's just not relevant.

And you know, a lot of e-commerce people... "Oh, why do I have to put a returns and refunds policy up?" "Well, mostly the banks want you to, and they'll enforce it. Because it's law. You have to have these policies, and it's protecting your interests."

Brendan: That's exactly right, and it's not a one-size-fits-all. It could be a big corporation, small corporation, there will be little things that, unless you get proper advice, that won't get picked up on, because- It'll read beautifully, but it's just not applicable, for various reasons.

For example, someone might be trying to get out of an act that only a corporation can get out of, over a million dollars revenue. You know, there's different things that apply, and all of a sudden you have copied Channel 7's thing, and it's for every large multinational corporations that are listed. Not applicable to local companies- You know, so the idea would be that you just get in front of somebody that you trust, say "This is what I want," and get a tailored terms and conditions, and that would be the same that should include a privacy policy. Even things like... A lot of people like to take credit card details, which are much more important than a mobile number, for example. What are you doing with that data? Get them to sign off on the direct debit request, and make sure that they've had the opportunity to get independent and legal advice before they sign your terms, conditions.

And also, with your terms and conditions, use them. Don't just go "Yep, there they are. Perfect." Put them on the website. What are you afraid of?

Darryl: Well, I think this is an important thing in building web pages. There's a gazillion different people, types, agencies, individuals that build websites, but putting on the bottom of inquiry forms or things, a checkbox that they have to check that you can't submit until "I agree to the terms and conditions," to submit things to your business or buy a product.

People would skip those steps on their sites. That's a way of making it part of your process, correct?

Brendan: That's exactly right. You're training yourself to better. I know that sounds a little bit condescending, but if you are not... A lot of clients went "Oh, the terms and conditions." I don't like giving them to clients. Why not? They're not enforcement if you don't- Because I don't plan on going to a lawyer, having them done, and then not giving them.

Darryl: But the people- Let's just say I have some. I'm out there in podcast-land, I've got a business, I've got twelve people, I turn over a few million dollars a year, and I think I'm covered.

It's not unreasonable to go to the lawyer. Not just to say [inaudible 00:16:05], but they should be getting their lawyer or legal advisor to actually review the website, and I'm gonna lead to another thing that people do online, which I'm gonna ask you about.

Actually look at the website and how it's [inaudible 00:16:18] implemented. You know? Because if I can't find it, if it's not accessible, if it's not linked in places that are relevant, it's almost as useless as well, isn't it? Just having it up hidden on some back page where a customer doesn't actually know it's there. Might as well not have one.

Brendan: Well that's exactly right. If it's hidden, it's no use. It's not enforceable, and you've wasted the money and all the beautiful work you've done getting yourself protected, then you might as well have not done it.

Darryl: Okay. So, where I wanted to lead with that is... We're in the world of online contracts, so signing documents, digital signatures, all of those things, so it comes down to that.

Your contract. I've got a product, I'll use one called Proposify, and... You know, it's three or four pages of proposal and about twelve pages of legal agreement at the back, whereas I would have previously tried to link it off to somewhere on my website, and my advice was "No, they need to be there when they're-" Because they're accepting that document electronically, and digitally signing, it all has to be present, and we did it. But there's the issue of digital signatures. These proposals that are electronic, where I don't print it out, sign it, and fax it back. What can go wrong there? What are the things that people have to consider about conducting their business through digital signatures and things?

Brendan: Oh, and digital signatures... They're coming in, and they're getting more and more, and the reality is that they're here to stay, and they're only gonna get more. So you probably should be keeping an eye on them if you're not using them already.

The biggest thing to confirm is that the person that- Because it just gonna be a electronic signature or a scribble? For the actual supplier, client person to confirm- That person on the other end of that signature is the person who is at the head of the document, so I'd send it to [inaudible 00:18:08] to make sure [inaudible 00:18:09] is signing it.

Now, how do you do that? You've gotta make sure that, firstly- Don't send it to an info-at email address free, and probably not. That probably goes to the office, or it could be temp staff. Anyone signs it. Plus it's an easy out for Joe to say, in twelve months time, "Oh, I never signed that."

Darryl: Hm.

Brendan: "That must have been the secretary. She's now left, she's gone on a Kon-tiki tour. She's gone. Good luck."

Darryl: Yeah.

Brendan: You know? An individual email address is a good start, and get some details. Get the drivers license number, same as if someone was in front of you. You're putting your business on the line here, signing the contract, you're putting yourself out there. Make the time to get some personal details that not just someone would know, the drivers license number, address, individual email address, and even simple things like when you're sending them something. Have them scroll down before they can accept it, otherwise you're just "Click, click, click, et cetera, et cetera, et cetera."

You know, a lot of boxes are grayed out. You can't press "Continue" until you've clicked the box. That's the kind of things- Even if you do an update on your Apple iPhone, they say "Do you accept-" You've gotta scroll down a little bit before you accept.

Darryl: Yeah.

Brendan: So, how come- Mr. Long, how did you didn't accept them when you clearly have to do something? You can't just click through.

Darryl: Yeah. Well I love that [crosstalk 00:19:31] adding a field like a drivers license or something to your proposal documents and stuff- You know, I hadn't thought of that. That's a great way of making that more like the old way of "Hey, I hand delivered this." You're signing, in front of me, this agreement. You know, like of all of those things that you used to do in the old world, that we don't do so much anymore. But that's a great way of really locking that down.

You know, a lot of people do this for very large sums of money. You know, like-

Brendan: Absolutely, and the other thing to note is that, this is fully acceptable and legal, so...

Particularly, when situations where people are dealing with companies, and they get a personal guarantee from somebody, and the personal guarantee is signed electronically. That is enforceable. That is fine, provided you've gone through the checks to make sure at the end- So, don't think "Uh, well I can only get with companies. I can't give personal guarantees..." It has to be the person signing it electronically, which- those are accepted.

Darryl: Well, here's another question related to that. Let's say I sent a proposal to you, and say it's a pdf document, and it doesn't have electronic signature. It just says what you're gonna get, blah blah blah. And we email back and forth about it, and then you accept that. You say, in your email "Yes, alright, go ahead with the proposal that's attached. I'm happy to proceed."

Edmund: Is that considered legally binding?

Brendan: Yes.

That is commercial negotiation that has continued, even... it would be very difficult for someone to say that after five emails, "Oh, that wasn't me," or [inaudible 00:20:57]

Now, especially "Oh, can you delete clause seven and twelve? I've deleted seven, I want to delete twelve." "Okay, I'll go with that, then." And you get it through signed electronically.

That is good evidence, so you should be engaging with your clients, to be up that kind of things.

Darryl: Yeah, okay. Great, excellent. We touched on the spam act earlier, we talked loosely about spam, and I think there's still a lot of confusion about spam. The owner says, on the person sending electronic mail, to not spam. Basically, it's against them, and I'm not sure if it's still current, but I know that if you are found guilty of spam at a gross level here in Australia- It was about a $300,000 instance... Cost, the fine that could be levied against you, if you are a bigger level, and I don't know if that's still the level, but people can be spamming so easily by just broadcasting stuff, and I know there's little [inaudible 00:21:54] to the law, like, you could hand collect stuff, send an email, and allow them to opt out, and all the rest of it. But people just grab stuff from wherever and send stuff.

"Oh, it won't affect me," but a small business doing this sort of behavior could easily be fined for spam if they were doing it repetitively.

Brendan: That's correct. That is the fine. Obviously, you would have to have been a repeat offender with some pretty poor history to get the full whack first time around, or for a so-called innocent mistake. But if you covered off in your terms and conditions that you're allowed to email people, they don't even know that they're entitled to receive it, but a big thing that a lot of people forget with emails over spam, which is something that's offering a service or a promotion or something like that. You know, emails over Mac- Just isn't spam. It's emails that are offering services that...

Topical, very topical, in the last week or two, is the fact that it was not by consent.

Edmund: Right.

Brendan: So, it's all about the person receiving- Did they consent to receiving it or not? And an important part of this is, anything you're sending for a blog [inaudible 00:23:01] have an "unsubscribe from this list" link. That takes care of nearly all of your issues, because, firstly, there's an easy remedy for the receiver. They can unsubscribe. Gone, off the list, never get it again. You haven't bothered them.

And if you send it again without an unsubscriber, you haven't taken not of the unsubscriber, that's where you start causing problems.

Darryl: And my understanding of it, and correct where I'm wrong, is that the way out... The local lore is that, I'm not sure 100%, but I think the U.S. lore is similar, that when you unsubscribe, the businesses are allowed a window, say, 48, 72 hours, to action that, because on a large scale business, it may not be- I mean, it should be automated, but it isn't. But most software providers, now, have that built in. Unsubscribe, and- If you use something like MailChimp or Campaign Monitor, they even make you put into the footer of your newsletter, "You're getting this because you signed up here or you dropped your business card and our lunch bowl" or whatever it might be.

But they kind of enforce that. Is that correct that it's not- You know, if you were doing it manually, if you were sending out to your thousand people, and you keep a little spreadsheet, there is a small window of time to enact the unsubscribe. It doesn't have to be instantaneous.

Brendan: That's correct, and different states and countries. But it's generally two to three days is accepted, and I've even seen five business days in one particular region, but two to three days is a good standard to have across the board, to [crosstalk 00:24:30].

Darryl: This falls under that "avoid" thing you started with, which is- People send you an email back saying "Take me off your effing list!", that's not something to avoid. That's something that you give over to the staff member, get them off the list. Even if you go "But there's an unsubscribe button at the bottom. Why don't they use that?" The obligation is, if they contact you to unsubscribe, you are legally obliged to fulfill that within a very small window of time.

Brendan: Correct. That's right. It's a well and good laughing about it, it might be quite an offensive email. You can laugh about it, but it does need action, correct?

Darryl: Okay, cool.

We have a U.S. president that loves social media, and is obviously above the law, as far as what he says, but most of us aren't, and that is where our behavior on social media impacts on our business or our employer, or things... by all sorts of relationships. It's very complex, but I think, from a business owner's perspective, which we've been talking about here, or senior executives.

What'll they need to understand? What are the sorts of things that they can get into trouble for, in the use of social media?

Brendan: Well, starting at the bottom, employees need to be aware that what they say on social media can reflect poorly on their employer, and it could be actionable against them. So, for example, say a man typing something simple like "Gee, my boss is a beep," then that's gone out on social media public, and everybody might know that that person works at Channel 7, for example, and it's pretty easy [inaudible 00:26:06] the CEO of Channel 7 hears, and all of a sudden you've landed yourself in a really difficult situation.

You're probably gonna get fired, and you're probably not gonna get any notice, and you won't get any entitlements paid, and you might even be up for some damages on top of it.

From a hedge point of view, obviously, you have to keep an eye out for that, from your employees, but before any of this got out on company pages, it is a public forum, so what you have to say now, leaving aside our esteemed friend, Mr. Trump, is supposed to be based on truth, or as truth as you know it. And unless it's quite openly, there are quite a lot of fake news sites, but they're openly fake news. They run humorous articles and it's quite clear what their mandate is, so, if you are doing that, once you send that out, don't sit somewhere in the middle where you're trying to do both. It's just gonna get you in trouble.

Darryl: And obviously, if you're putting out products or promotions, they have to be correct, otherwise you have the same obligations if you put a catalog out in print, with a wrong price, you have to correct these things. It's not just "Oh, well that was a post from three days ago." You actually have to remedy what you're putting out in the world.

Brendan: Absolutely correct. And if it's the thing that the offer is there, you're bound by it. It's the same as if you walk into your supermarket and see that the sign on the front says this, and they say "Oh, it doesn't matter. Can't anybody pay how much for that?" Exact same thing in all of the social channels, and anything online.

Edmund: Brendan, if I have a staff member who's managing the social media account, and they say or do something that... First of all, can the organization- Can the company suffer a legal issue because of what the employee said, or is there a way of protecting themselves from an inadvertent employee doing something or saying something incorrect or... you know what I mean?

Brendan: Yep. I know what you mean. Now, important point, you probably said first, is that this is your social media manager. So, their role will have already been, instead of the employment contract, you've got your lawyer to do up. And that will have allowed them, probably carte blanche to make decisions, or... It should set out the chain of command as to the leeway they got on doing courts and stuff.

For example, they may control your LinkedIn and your Facebook pages, but they are expected to do X amount of posts a week or per day, and about our company. So, an employer may have unwittingly allowed the employee... Let's just say, something goes online, there's an unintended consequence or something wasn't picked up on, and it's just distasteful and wrong time, and someone didn't know, and it's very possible that the company is the one that's at fault, because of the leeway given to the employee or structures in place.

It's more so than- The next one is if, if it's a rogue employee that does something, the company can distance themselves from it, and if they do the right thing, they will be able to protect themselves from direct damages, aside from all the...

Edmund: PR?

Darryl: Yeah, but that leads back to understanding... You know, in a lot of roles, people will write their own employment documents, role documents, but the impact of this is much more far reaching than someone that's just doing some basic admin and they've got oversight in the office. That, again, are you getting your legal advisors to help outline the role responsibilities, the reach that this person in this digital role can do, because they're probably having to produce content, and they're looking around, "Oh, well we'll do this content about a certain topic," without thinking about the implications. So everyone has to be aware of that.

But I guess, fundamentally, it's about getting legal advice for areas that you might not have thought you needed to go that deep. And even if your HR manager is fantastic, writes great documents, they don't necessarily understand the legal obligations of that person posting on Snapchat videos and sells out on a Friday night, under your banner.

Brendan: That's exactly right, because your HR manager might have all this prior experience in running documents, but we see the other end for people who didn't write the documents. We've got the experience of finding out what doesn't work, what not to do. The handle might be there on what to do, but there's the middle area, kind of, do all of this, do that, we'll tell you. We definitely don't do this because, here's our experience. This is our [inaudible 00:30:40] won and lost because of this.

Darryl: So, and this raises the other thing. Technology's moving really fast. I mean, we're talking at the- "Oh, I've got a website, and maybe I've got an app," but things are moving faster and faster. Mobile phones are allowing us to do so much more. These are massive supercomputers in your hand. And invariably, a business doesn't- An owner or a CEO, or whatever, doesn't sit there every day, necessarily running a medium sized business going "Gee, we should probably check whether our privacy policy covers Snapchat or this or that." You know? They're not keeping up.

Do you have any advice on how and when just to sit back and say "How's our business being protected across everything we do now?" We used to do everything on little duplicate copy border box, now everyone's got an iPad. We haven't even thought about our data storage, and that we might have... You know, we're dealing with childcare centers, and there's a legal obligation that it can't go outside our state, and yet here we are using Amazon web services, and it's being backed up all around the world, and we didn't even know we're breaching the law.

How does someone just sit down and catch their breath? Obviously they could talk to their lawyer, but they need to kind of audit what they're doing. Make a list of it. How we run our business, or bring the lawyer in. How do they get a sense of "I'm pretty covered, and I'll do it again every twelve months, or..." How often should they look at it? All those sorts of things.

Brendan: Twelve to eighteen months is a good, sensible timeframe. Any more than that is obviously great, but it does become, probably, more expensive than it's worth. The biggest thing is that, once you've been done right the first time, it'll just be an update and refresh, and sometimes, for example, you might get them done now, and then in twelve months time, you might just get someone to have a look at them, and the lawyer works out, pretty quickly, that there is no real legislative change in that particular area. No update required. No charge.

So, you're safe for another twelve months, might be a couple hundred dollars [crosstalk 00:32:44]

Darryl: Did he say "lawyer" and "no charge" in the same sentence?

Brendan: Oh, you did pick up on that! Alright.

I thought I'd slip it in without getting attacked for it, but man, it happens occasionally.

Edmund: All the lawyers in the audience heard it. Don't you worry about that.

Brendan: I'll be getting a hand note for saying that.

Darryl: But I guess there's an obligation on the people running the business to get some understanding of what they now use. "Hey, I'm now using Dropbox. I'm now using this." And give that to the lawyer, because at the end of the day, the lawyer doesn't defend you for free in court. You pay them to be there, but the document doesn't protect you, in theory. You have to protect yourself in court. You have to say [inaudible 00:33:29]. If you don't give the lawyer the right information, it's a bit like anything. You don't give the builder the right specifications, they're gonna build the wrong house. So you have an obligation to update your advisors, accountants, lawyers, "Hey, we're now doing some other stuff. Does any of this matter?"

Brendan: That's absolutely correct. You know, you get your documents done, it's X amount, and then updating every year... You might say, "Oh, what a waste of $500 a year." Don't look at it that way, just think of the saving of about nine and a half thousand a year for something that has been amended and changed? So like, yes, you don't see the result, but you'll see the result if you don't do it.

Darryl: Yeah, right. So I guess that comes down to it- I mean, would I be right, and you would know this because you're the guy that gets the problem in... Is the biggest reason that people don't do this... I mean, with so many people starting businesses of their own, they might not know, but is the other reason that everyone thinks it's just gonna cost so much money, "I don't have that money right now. I've got all these other things to do," and it's that short term behavioral economics versus what you just said, which is...

We'll save you a lot more. I know it might hurt a little bit here, but... Is the financial cause the reason, or is it more people who just don't realize what they're exposing themselves to?

Brendan: There is. A huge part of it is the financial side of things- Well, that's just overkill. I'm just a small business. Absolutely. But you'll be a small business that could be buried in six months if you don't do well.

The other big factor, and this is more for the established businesses, their big reason for is, "Oh, we've never done it like that." Sure. That is not a good reason to not change.

Darryl: Okay.

Brendan: If somebody in the organization is saying "Oh, we don't do it like that around here. We've never done it like that. We'll do it this way," could be a trigger in everyone's head to think... Is it because that their method is the best, or is it just because they're stuck in the way that they've always done it?

Darryl: Are there other areas- I mean, we're getting- We're probably getting close to covering it. It's been some great info, but what other areas, or are there other areas about business in an online world that we need to know about?

Brendan: Security is so important. I mean, even the websites that you are on, for example... Do people still look at to make sure it's a secured site? So- And that goes then for the person's own website, for example. Have you made sure to keep up, and that it is secure?

Onto the data, onto the terms. They're all the main things to really clamp down on, and don't let things drag out, is the biggest thing. So, if something happens, and you decide "Oh, well I won't do anything for a while, because, you know, John's a good fellow." That's not what- You know, in a worst case scenario, that comes to court, and the judge goes "Oh, well you accepted because you never went back to him." "Oh, well, I thought-" Yeah, it doesn't matter what you thought. You let it drag on.

Darryl: So the key thing there, I guess we're saying is, in business, everyone has issues that come up, and you have to- What the smart thing to do is to deal with them immediately. If there's any potential legal ramification, get your advice. Don't fire back the midnight dirty rant of "OH! AH WAH BLAH BLAH BLAH BLAH!" Instead of your email rage, take a deep breath, forward it to your legal advisor, get a legal advisor.

So, maybe the takeaway from this is, if you're running a business in an online world today, or any business, on or offline, make sure you have a legal advisor, but use them as an advisor. They're not gonna- You're not gonna be paying a gazillion dollars to read a complaint from a client, and give you some suggested advice on how to respond to there. It's gonna be a no-sure fee, just like your accountant, or anyone else when you ring up and say "Hey, what do I do now to avoid paying tax this year?" or whatever it might be that you ask your accountant, but...

So, get the advice, fulfill these things through, and don't be afraid to ask, rather than just try and solve it or avoid it.

Brendan: Absolutely summed up perfectly, Darryl. And be a little bit more proactive, and don't- There's an idea out there that lawyers are roadblocks. That's not the case at all. It's not good for us if our clients don't get deals done. We just want them done properly. So, lawyers aren't roadblocks. Use them, and, as you opened with, there's never a time where someone will say "Gee, I went to my lawyer too quickly."

Darryl: I see a little bit like an SSL certificate in. You know, like, you put a padlock on your site, not because you got hacked last week, but you want trust. You wanna make sure that you're protected next week, and the week after. "Well, yeah, but I've gotta do this change and all the rest," but I see it the same way, you know?

It's [inaudible 00:38:24]. We're doing it in advance, we're thinking about things we have to do, and we're trying to be professional business operators in an online space.

Edmund: That's right.

Well, speaking of using your lawyer, if someone wanted to get in contact with you and find out more information about your expertise, Brendan, where would they go?

Brendan: Well, my door is always open. Office is here on level 5, 49 Sherwood Road, in Brisbane here. Always welcome anyone that wants to come in and have a chat. Get me on the phone. Mobile or landline. And all of that information is on our website, which is celticlegal.com, that I use.

So, we're on LinkedIn and Facebook, so feel free to get in contact with us through any of those means.

Darryl: Brilliant. Thanks, Brendan. It's been fantastic.

Brendan: No problem at all. I just hope everyone understood what I was saying.

Darryl: Perfectly.

Edmund: I actually thought it sounded a bit like a U2 concert at first, but... You ended up being [inaudible 00:39:27].

Well, I think that was a great episode, Darryl. What do you reckon? Have we come to the end of this one?

Darryl: I reckon we have.

Edmund: Excellent. And if you enjoyed this episode, and you enjoyed the information that our first guest has brought you, we'd love it if you left a positive review about your legal obligations and Keeping It Legal, on iTunes, or if you want more like this, follow us on our website. Subscribe on the website for notifications, and maybe next week, pop in and we'll continue this discussion about Your Bloody Website.

It's goodbye from me.

Darryl: That's goodbye from him.

Edmund: And it's goodbye from Brendan.

See you guys.

Brendan: See you two.

Darryl: Thanks for listening.