Website Hosting Contracts
Here are some questions which web lawyers are often asked about the legal aspects of web hosting:
What’s the point of a website hosting contract?
A website hosting contract regulates the legal relationship between a customer and the supplier of a hosting service – whether on the host’s dedicated / shared servers or under a co-location contract (where the host stores the customer’s server) or otherwise. Amongst many other things, hosts will keen to use such agreements to restrict their liability to customers if something goes wrong and to ensure they can deal properly with third party complaints about hosted content which is infringing or illegal.
Do resellers need web hosting contracts?
In our experience, resellers of hosting services can be unaware of the importance of web hosting contracts. Sometimes resellers think that they are in some way protected by their contracts with the “upstream” host. Whereas the end customer is not a party to, and so not bound by, the agreement between the reseller and the ultimate host. If there’s a problem, the customer’s legal recourse is likely to be against the reseller and the reseller must then try to pass that liability on to the ultimate host – if possible. So it’s critical, not only that the reseller has its own website hosting terms and conditions, but that these don’t promise more than reseller gets under its own contract with the upstream host.
What about “SLAs”?
An SLA or “service level agreement” may be an important component of a host’s offering. This is the part of the hosting contract where a host offers a minimum, measurable level of service. The kinds of metrics that can be specified in a website hosting SLA include the percentage availability of the service, the host’s response times for particular kinds of faults and so on.
From a legal standpoint, it is important that the SLA defines very clearly what is on offer. For example, the word “availability” is often used too loosely in SLAs. Does this include downtime caused when the host carries out planned maintenance? Is a service “available” if it is functioning slowly but still useable. What if the outage is actually caused by a third party network outside the host’s control?
If web hosts are offering SLAs, they will often be keen to restrict liability for any breach of the SLA to defined service credits.
Are website hosts liable for defamatory or infringing material which they host?
Potentially – yes. Unless they act quickly to remove infringing material once they become aware of it. So for hosts, it’s important that their terms and conditions allow them to remove defamatory or other problematic content as soon as they receive a complaint.
How does the “GDPR” affect data protection responsibilities of web hosts?
Generally, the hosting customer is the “controller” and the host is the “processor” of personal information which the host stores as part of the hosting service, e.g. contact details of the hosting customer’s own customers. Data protection law (known as the “GDPR) says that such contracts must contain a fairly long list of minimum requirements designed to protect the rights of the “data subjects” and to allocate responsibility as between controller and processor. So this aspect is now an essential part of every hosting contract. If the host is storing personal information outside the European Economic Area (EEA), then extra considerations arise.
What is a co-location contract?
Co-location is a form of hosting where the customer rather than the host owns the server, which is located in the host’s premises. Co-location agreements therefore differ in some respects from other web hosting agreements in that, amongst other things, they need to address the customer’s physical access to the server. Often there are SLAs covering issues such as security of the premises, electricity supply, air conditioning, connectivity and so on.
