Computer Society and Law
Discuss the legal issues that are relevant to the quality of the new website and database, and to protecting your company from problems arising from the merging of the two IT systems.
Introduction
It is very crucial for the management of an organization to understand the legal parameters in relation to formation of new websites. Websites are a direct reflection of the position of the company. Failure to put legal considerations may land the company into serious legal troubles. It is through the website of a company that the organization directly links itself to the outside world. As such, the information contained in the website of the company is very sensitive. Most of the companies face legal actions as result of the kind of content that is pit up on their website. Although the law allows for freedom of expression, such freedom must be done within the parameters of the law. The law ensures that even as the company seeks to remain competitive, it does no infringe on the rights of other companies that operate the same business. Legal actions can be extremely costly to an organization. Usually, when a company is sued for infringing the rights of another through website content, the defendant will pay. The fines tend to be hefty as punitive measure. The legal issues of consideration are discussed herein below.
Copyright Concern
The various parties to the merger must be keen enough to ensure that all rights of copyright are observed. Failure to do will amount to an infringement of these rights, which will consequently lead to legal suits. In the creation of a new website, MN must be careful to ensure that any work that is on their website is not copied from another source (ICAEW, 2013). This relates to both the content that is written as well as the image used in the website. For example, logos that were used previously can no longer be used as individuals developed them. These individuals have a claim to the copyrights of these logos. (Bitton, 2012, 67).
Domain name
Choice of domain name and the manner of protection is equally of essence. The domain name of a website is the address of the website. Most recently, there have been disputes that have arisen in regard to domain names. This is attributed to the increase in the use of worldwide web (www) and internet in general. The management of the company must therefore ensure that a trademark registration is obtained for the domain adopted. This will ensure that on one hand they are protected from lawsuits and also ensure that they have exclusive rights to use the domain name (Ram et al, 1998, 380).
Trademark
This is a slogan, image or word or any unique aspect that is solely created and adopted by a company for its identification. Trademarks are imprinted on the products of the company as a way of identifying the company and its products. Trademarks are patented meaning that they are protected under for use exclusively by the company that creates them. As such it is considered an infringement of the exclusive rights of a company when another organization adopts a similar trademark as that of another. When a company adopts the trademark of another organization, the intention is calculated to deceive consumers in the market. This creates unfair competition in the market. In the selection of a trademark, MN should be keen to ensure that there is no other company that operates under a similar trademark. Further, any trademark which is adopted should be so distinct that it is does not come close to that of another trademark in the same industry. When trademarks of companies in the same sector are similar, mischief can be read on the part of one company and this will attract legal suits.
Defamation
Simply defined, defamation is the mudslinging of another person. It is the portrayal of another person in bad light causing embarrassment while injuring their person and reducing their status in public (Karaganis, 2011, 16). Defamation takes two forms, which are slander and libel. Slander is spoken defamation while libel is written and or published defamation. Libel carries with it more consequences due to its permanent nature. For defamation to have taken place, a third party must have published either the slander or the libel (Horten, 2012, 144). It must also be proven the third party who publishes such information had the sole intention of causing embarrassment and that the publication was malicious. In New York v Sullivan it was held that proof of malice must be shown.
The advent of technology and emergence of internet has served to complicate the issue of defamation. Although a lot of content is published on the internet which ay be considered defamatory, there are no laws that govern this area. The only party who is left to carry the liability of any online content considered defamatory is the service provider(Dalton, et al, 2004, 187). It is however important to note that huge milestones have been made in the legal field. In addition, the internet domain continues to experience dynamism. As such, it is crucial for companies such as MN to be extremely careful on the kind of information that they put up on their websites. Damage of the reputation of an individual or an organization may lead to serious legal consequences. Even though the laws that govern online defamation are yet to be fully elaborate, there are still legal options that aggrieved person can take.
The only way to ensure that the website of an organization is viewed by as many people as possible is though linkage. Linking involves connecting the web page of the company with other pages. It is however important to ensure that legal procedures are followed in linking the pages (Charlotte, 2005, 156). MN cannot link their page to the page of another company without express permission from the other company.
Discussion of the implications of the legal issues arising in this situation, including an assessment of differences that could arise if you used the software house rather than the university lecturer to do the work
This is yet another crucial area of consideration by the MN management. In drafting an employment contract, all relevant aspects that are crucial to the employment must be captured. For example, the amount of salary and benefits, retirement or otherwise must be expressly stated Sharma, 2012, 234). The need for this contract is because there are employees of two spate companies. A contract in this case ensures that the expectations of the employees are not deluded and that they remain as they were prior to the merger. Once a contract of this nature is drafted and signed, an employee cannot later make claims that are not in the contract (Das, 2013, 225).
It is also crucial for both companies that seek to form the merger to exercise due diligence. This is especially in relation to matters of finances. When a company merges with a company whose finances are way lower than her won, the latter will stand to lose out. It is important to note that mergers are supposed to promote the interests of both partners. Therefore, if one party to the merge stands to benefit more than the other, then it is important to make serious consideration on the best move to take. Proper research on the history of the other company is crucial before a merger. If a company has a lawsuit that is pending in court and merges with another, then the legal responsibility is transferred to the new company (Kesner et al, 2008, 340). A background check is none whose importance cannot be overlooked or ignored during mergers.
Plan the negotiation that you, as director, will have with the lecturer before you agree that they can do the work
When it comes to the use of software, companies have to main options. They could either utilize their own in-house person or hire an independent contractor. If the company decides to hire an independent contractor, (a university lecturer) the law that relates to independent contractors must be followed (Occupational quarterly, 2013, 36). MN may decide to hire independent contractors from AB. Doing so will help reduce the legal liabilities that may MN would otherwise faced if they used in-house software house. In addition, this has the advantage of reducing the general operation costs of the MN. Since an independent contractor is not a full time worker, they will only be paid for the time they work. This will be cheaper for MN as opposed to having an in-house employee.
Independent Worker
Before engaging the services and an independent contractor, negotiations must first be done by the management of MN. The biggest mistake the management of MN could make is to make assumptions regarding the relationship between the company and the independent contractor. In Barnett v Brabyn, it was held that negotiations with an independent contartcor are crucial. A contract will be crucial and will provide parameters of their relationship. Among the issues that will be described will be the nature and extent of the work of the independent contractor. All issues including the days when the contractor should report to work should be captured. Other issues include when he or she should complete the work and whether to use same premises for other jobs.
Intellectual Property
When dealing with independent contractors, the issues of intellectual property must be discussed in details. In the cause of dealing with the company, there are certain ideas that he will generate. These ideas will benefit the company on one hand. On the hand, they will be the sole creation of the contractor. The management of MNC must therefore agree on the manner in which intellectual property such as the ideas generated by the worker will be utilized. The worker should clarity whether he would want the company to sue the ideas exclusive as if they were their own. If not, there must be an agreement of the ratio of utilization of the intellectual property between the company and the worker. This is because the worker is paid for the production of such ideas and therefore cannot claim that they are exclusive his. There is also the aspect of taxes that must be agreed between the company and the independent worker. Since the worker is not an employee of the company, then the worker will be required to file their own taxes. Failure to file such taxes excludes MN management and company from any liability.
It is also crucial that the management of the company allows the independent contractor to carry out the work in the best way he chooses. The only condition is that the results that have been agreed upon must be achieved within the stipulated timeline. Other issues that will be agreed upon is whether MN will provide tools of work or whether the worker will come with his own.
Of essence in independent contracting is the manner in which payment will be made and on what basis. For fully employed workers, the criteria are standard and clear. However, the case of an independent contractor varies from one context to another. There is standard that is followed when it comes to independent contracting. It all depends with the manner in which the company and the contractor will agree.
- Crime and Court
Summarize the legal issues relevant to this situation. Consider what illegal activities took place, who may have been involved, and any data protection issues
A merger refers to a combination of two companies to form one company. Mergers must be differentiated from an acquisition. A merger is the combination of two companies to form one company ( DePamphilis, 2008, 740). This means that the identities of the two companies are lost and one new company is formed. In an acquisition, however, the companies retain their identities and there is a line that is drawn beyond which each company both companies cannot cross. For example, when companies A and B merge, they will form a new company XY. However, in an acquisition, companies A and B will form company AB meaning that they will retain their original identities. Mergers are mainly done for purposes for market survival. With a merger, companies combine their strength so that they can position themselves better in the market.
In this case, there were various illegal activities that were discovered. For example, it was found that there were some unauthorized emails that were sent using the company email. It also became apparent that the employee who sent out the emails did not have access to the database. This means that they obtained the password of another person and used it illegally or they hacked into the account. This brings about an issue of putting the company data into jeopardy. Before a, merger can be done, it will be crucial that YZ addresses issues to do with data protection. This is because; failure to do so will pass on the liability of YZ to the newly merged company. This will have serious legal implications on the company.
Establishing an Agreement Clause
When forming a merger, there are certain legal considerations that must be made. This helps to protect a company against lawsuit:
An agreement clause is written document in which both parties to the merger agree on certain issues. The agreement is considered the basis of the merger. This helps to establish parameters upon which the merger will operate. Such an agreement helps to ensure no part is disadvantaged and that the interests of both companies that form the merger are fully represented. Having such an agreement also ensures that both parties and their interests are legally protected. This agreement is considered supreme meaning that any other previous agreement made written the parties to the merger must be consistent to the agreement (Popp, 2013, 141). In case of any inconsistencies then the agreement will take precedence (Sytse and Schreuder, 2013, 64).
It is also crucial that the partners to the merger ensure that all the provisions regarding of the merger are properly covered. The finality of the agreement must be understood and agreed by the party so that both read from the same script. Such an understanding helps renders void any previous agreements of any kind. The only exception is if such previous agreements or discussions are provided for in the agreement clause.
Expert Witness
An expert witness is a person who is knowledgeable in a particular area and who can provide evidence in relation to a particular area. Expert evidence that is provided in a court of law is used together with evidence of facts provided. As such, expert witness cannot solely be used to secure a conviction against an accused person. It must be corroborated with material facts. On the other hand, if an expert witness provides false information which in turns misleads the court on a particular issue, the expert witness will be held liable. Therefore the lecturer must ensure that they are well versed in the particular area of concern. Information must be properly verified before it is presented before court.
Conclusion
When it comes to various dealings of the matter, it is of great importance that accompany avoids law suits. This can be done if the company remains within the parameters of the law. Legal suits are not good for the company. They not only tend to create bad publicity for the company, but they can also be very costly to the company. If the company is found to have violated or flouted nay laws, they may be required to part with a hefty amount. This is in most cases drawn from their profits which the company has made previously. Every company must therefore endeavor to keep lawsuits at bay.
It is also crucial when drawing contracts to ensure that clauses and provisions are not contradictory. When this happens, it serves to render the contract void and this works to the disadvantage of both parties. It is also important to note that every provision in the contract be a true representation of the understanding, wishes and expectations of both parties. Therefore, before any party to the contract could append their signature, they must understand and agree with the provisions. Usually, when party to a contract signs without understanding, they are assumed to have understood. As such, they stand bound by the provisions and cannot be excused in law should they flout the provisions of the contract.
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