Australian website hosted overseas, whose laws apply?

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Bob

Well-Known Member
16 April 2014
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I am looking at setting up a website for my Australian business from which I will sell my products. But whose law governs my privacy policy, e-commerce terms and conditions and consumer rights etc? Australia? the country my host is in? or the country the purchaser is in?
 

Tim W

Lawyer
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28 April 2014
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The answer is in two parts.

Firstly, in regards to the website and hosting...
There will be a "Choice of Law" clause in your contract with the site provider (or host).
Any action you bring against the site provider would be under that law of choice.
That might not be Australia.
Which means, yes, you would have to sue them in Ireland, or Ecuador,
or the USA, or wherever you have agreed to.

For the transactions you do while in Australia,
it's about where you are.
Absent any express choice of law clause in the contracts you make with your customers
you can expect to be bound (and, indeed, protected by),
the law of Australia.
 
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Worldly1

Well-Known Member
25 April 2014
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You can be clear about your Terms & Conditions for customers on your site and include a Governing Law clause (you can check out these in the T&Cs for most Australian based websites).

Yes if hosting is overseas, then you would be bound by their Governing Law/jurisdiction clause as noted by Tim above.
 

winston wolf

Well-Known Member
21 April 2014
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Adelaide
changefpa.com.au
Regarding your privacy I believe it is the jurisdiction of where the server is and where the business operating the server resides.
ie. If you have site running on US territory or you are using a US host(regardless where it physically is) they will follow US law and give you data to any US law agency that requested it.
I think your privacy obligations to your customers would be under Australian law if you are trading from Australia. You probably need a privacy statement to cover this.
Having said that this is very new area legally and I would expect conflicting opinions.