Website cloning – a business reality with intricate legal consequences

The newest and most effective marketing tool for business exists nowadays in the digital world. Whereas a good and attractive website has all the prerequisites to have a strong impact on the market share and positioning of a firm, it has the drawback of exposing important and not always protected content to infringements.

Website cloning is generally referred to as the process of creating a replica of an existing website, or simply put, copying a website or its design and associated elements. Whereas the beneficiary of the clone would not need to have the scripts re-written and would benefit from a “ready-made” marketing tool, the process has sensitive associated legal implications.

In the business world, we have seen many cases of clients whose websites have been cloned and used by various perpetrators, in bad faith, in order to impersonate partnerships or ties with the victim, mostly for getting credibility and finally receiving money or other advantages from the market.

Knowing that many website design tools use open-source data, the process of website cloning does not seem to come to an end. Of course, the immediately available recovery tools are the technical ones, by this understanding complaints to the registrar of the clone website or enhanced website security, host tracing (if possible) or even requests to Google for content delisting on the grounds of copyright concerns (known as Digital Millennium Copyright Act complaints).

Usually, website cloning has a cross border component since cloned websites can be used anywhere and can be cloned from anywhere in the world. Depending on various available legislations, a victim of a website cloning may address a complaint on the grounds of cyber legislation infringement, that can have a criminal component, as well as a civil one, for damages recovery, if the host of the website cloning is identifiable.

For exemplification purposes, in UAE, our firm has filed a couple of criminal complaints benefiting victims of website cloning, under Federal Law No. 5 of 2012 (“New Cyber Crime Law”).

Aside from the regulatory tools available to them, website owners, potential victims of cloning, should recommendable use a proactive approach in order to prevent, as much as possible, the process and increase their chances to succeed in a potential legal claim against the perpetrators.

From a legal perspective, it is paramount for a website owner to secure ownership over the designs and intellectual property (IP) associated with building a website by a web developer or an employee. Whereas in intensely regulated markets (such as the EU), the general approach is that the website associated IP produced by an employee in the service of a company is vested in the company, afferent contractual provisions should exist, in order to avoid cases and situations where the legislation is not harmonized or is silent over the matter. Likewise, a contract with a web developer should enshrine a proper scope of work on the part of the latter, the fact that the ownership over the website and associated IP rights are vested into the owner of that website, non-disclosure clauses and, quite important, warranties on the part of that web developer who inherently worked as a subcontractor in developing the website at issue.

In furtherance, a website generally contains IP data that may benefit from legal protection. Few examples in this respect could be:

1. distinctive data (such as firm name, website name, domain name), which may benefit from trademark protection;
2. firm logos, as used on the website, can also be legally protected as trademarks;
3. text, images, software or photographs, as long as they are original, can benefit from copyright protection; in many jurisdictions, UAE being one of them, the website owner has the possibility to register the copyrightable material of the website so as to obtain a proof of priority date (simply put, to be able to legally ascertain that similar or identical material produced by others say website clones, after that copyright registration, would constitute a copyright infringement);
4. the design of the website, in jurisdictions where such right is recognized in favor of a website owner.

Additional methods of protection benefiting a website owner lie in the continuous diligence and good practice in administering their website. Website terms and conditions or disclaimers, clearly informing the ownership rights of the website owner over various elements contained therein or statements informing the third parties’ rights of accessing and using the elements of a website, are also beneficial. In this, we would also include deep linking and meta-tags used for search engine optimization, knowing that linking to freely accessible websites does not usually require prior authorization of the website owner. From a purely legal perspective, such measures are deemed to elaborate and quantify a favorable claim for a website owner, in case of, for instance, copyright infringement case.

Last but not least, a website owner should have contingency measures in place in case of a data breach or any other type of infringement derived from the fraudulent use of their website. As a main recommendation, website owners should make sure that the sensitive data collected through the website (names, cards, banking info, etc.) should not be stored on servers. By this, a website owner ensures not only their compliance with the increased data protection legislations worldwide but also avoids data processing related litigation from their customers and website visitors.

Conclusively, as long as marketing activities are strongly interconnected with the digital world, website owners should take the necessary precautions for protecting their image and standing, knowing that infringements can have a generational impact over a business, from reputational damage to more severe legal consequences, such as claims.

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