Our web developer has behaved totally unprofessionally. What are my legal rights?

Dear Aunty B,

We engaged a web designer to create a new website for our family business. All we needed in the first instance was emphasis on the branding, and minimal information to which we could later build on the content as we went. We specified that e-commerce capabilities were not an immediate concern, but that after the site went live we would concentrate on it.

Before we could approve the content and design, the web designer contacted us from her overseas holiday to say she was ready to go live and that we need to pay $9000 for her work. We had seen some of the work and fed back that we wanted some of the decorative graphics removed as they were not appropriate to the “look” we wanted to portray of our business and repeated that we were not ready for all information to go live. However, she went ahead and authorised the roll out anyway.

Needless to say, the design was messy, the e-commerce section (which we repeatedly said we did not want to go live yet) was incomplete as customers could not see prices next to items displayed, and to make matters worse, she held off removing inappropriate/incomplete material until we paid. We both felt that asking for the total of $9000 for a website that was incomplete and which we did not approve was not rational.

We told her to come into the business for a discussion about where things stood as we were prepared to pay only a portion of the total amount, which we thought was fair as she would need to continue to improve the site. She never came to see us and shortly after took our website off line and our business email account was suspended so that we could not continue to do business.

Communication since has evaporated and she has avoided contact but of course we will only hear from her should we send her the amount in full. Again, we were prepared to pay an amount, but not the full amount.

Recently I looked up our business name on Google and it led to her web design company and under our profile in her list of projects she states that the client (that would be us) “has been taken off line for their inability to pay their bills on time”. Surely, this is not legal or proper conduct and in fact I am quiet furious about this web designer’s handling of the whole matter.

Where do we stand legally and how can we legally force her to remove the unprofessional statement on her web site about our business? Furthermore, we do not want to deal with her any further and are prepared to find another web designer and start from scratch.

Giuliana,
Sydney

Dear Giuliana,

What outrageous behaviour! I keep hearing stories about web developers and business owners fighting. And while legal adviser Peter Vitalie is mulling over this, I am going to put my theory out there on why this is so common, and readers, I would like your thoughts on what I dub the “Aunty B theory on web wars”.

You see, web developers used to own this space. They build these proprietary systems for a small fortune and locked businesses in. They built them from a geek perspective and didn’t understand the business side.

Businesses then began to demand more input and developing sites became cheaper and less difficult to use. However business and web developers keep fighting.

Why? Because a website increasingly is a publishing venture. It has design and content elements that neither the business nor the web developer usually have a clue about. The business briefs the web developer badly, and then gets frustrated because the web developer has not produced what the business owner had in mind.

So here is what all business owners and web developers need to understand.

They need to use professional content creators in their web development. Now this is no ad for SmartCompany’s custom publishing arm, where we do exactly that – instead it is a plea for all parties to realise that many web developers don’t have a creative bone in their body, and usually business owners don’t either.

Now you can see your problem right here, Giuliana. You are unsure if you are using a web designer or a web developer. They are two totally different things. The publishing business that includes designers and content creators (journalists) is highly specialised.

So web developers must link up with designers and content creators, and business owners must stop looking to save every cent and be prepared to pay a little more for professional design and content creation.

OK – here is legal eagle Peter’s reply:

Giuliana, a story all too common – there’s enough in here to keep a whole legal firm busy for years!!

First the Google thing. There may be grounds for claiming that the search link is a false representation in breach of section 52 and 53 of the Trade Practices Act; there may also be an action for defamation.

 

Second, the failure to complete the project may constitute a breach of contract. Aha! What contract, you say? Nothing in writing? There is still a contract, albeit that its terms will be made up of implied legal terms, terms discussed between the parties, and any relevant documentation.

 

A bit of a mess really, which just goes to show the value of having a written contract – but I digress.

The customer (yourself) may also have recourse to the consumer warranties in the Trade Practices Act requiring goods and services to be of merchantable quality (among others).

 

The web designer’s conduct might also amount to negligence and bringing down the website may amount to the tort of interference with the trade of the customer (you will need to be able to demonstrate financial damages). Assuming the contract with the web host is directly with the customer, there may also be an action for inducing a breach of contract.

 

In short – assuming the business is being severely damaged – invest in a litigation or IT lawyer who knows their stuff and get them to start rattling the cage; and, start from scratch anyway.

So Giuliana, (Aunty B here) hope that helps. I would go off and get a lawyer to write a very nasty letter using Uncle Pete’s main points.

Good luck!

Your Aunty B and Uncle P.

Comments

Brendan Lewis writes: I would also have to say that Giuliana should immediately engage a technical intermediary to recover her account and stop continued damage to her brand.

1. Find out to the registrar is for the domain name and give it new address details (so it no longer points to that website).
2. Setup a new website and new email addresses (around $100 a year in total).
3. Put up a one page website with company address information.

Then fight it out with the web developer, while your brand and operations aren’t being damaged.

Seth Rodgers writes: Another disappointing story that unfortunately makes it harder for web developers who are out there and focusing hard on putting the customer first. Firstly to hear that a web developer is charging $9000 for a site is daylight robbery. This is not market value and companies need to shop around to avoid paying this sort of rate.

There are a couple of ways to ensure that you get the right developer:

1. Look on the following independent site: www.whichwebdesigncompany.com/au – customers rate their designer in a 3rd party environment uninfluenced. Real reviews for real websites.

2. Pick a Pty Ltd company that has a physical office presence. I know that you can get great freelancers, but for B2B its important to know your dealing with a real company who has been around for some time and will likely be around for some time to come. Pty Ltd is important as well, it, in my opinion, adds a layer for trust to the process.

We at White Knight employ consultants who have worked in either small or big business to help get this process right. They meet with the customer, develop the scope and then work the tech team to ensure that the right mix is injected into the process. This ensures the link between tech and business is maintained for a better end result.

Carly Youd writes: A word of advice for Giuliana and other business owners, one of the main things to look for with a website developer is that it’s a team of experts, not just one person. If it’s just one person on their own, they can’t possibly offer the range of skills and expertise or the ongoing assistance that a business needs when they are building their online presence. Ideally, the website developer will be an established, reliable company with lots of experience building business websites and a team that covers the area of software engineering, programming, graphic design, internet marketing, search engine optimisation, project management and technical support.

Our organisation Website Standards Association Inc (www.websitestandards.org) is a resource for business owners to understand the standards they should expect from a website developer. Our website has general information about what website developers should provide and also some technical standards that business owners can download and use to determine if they are getting the best possible service from their website developer.