Online publishers liability |
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| Technology | |
| Written by Brian Eagles, Partner, Howard Kennedy IP, Media and Leisure Group | |
| Wednesday, 23 September 2009 | |
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SME publishers and web owners should be aware of the liability arising from misleading Website statements. The Court of Appeal’s recent decision in the case of Gary Patchett & Another v Swimming Pool & Allied Trades Association Limited highlights a website owner’s potential liability to visitors to the site for misleading statements made on it. It is clear that, dependent upon the particular facts, a website owner can be held to owe a duty of care.This potential liability can be avoided or reduced by taking sufficient protective measures to ensure that the Terms and Conditions of Use on the website clearly disclaim the website owner’s liability in relation to statements made on it. Not only do many websites not have any Terms of Use at all on the site – nor indeed do they have a Privacy Policy – which leaves them non compliant with statutory and regulatory requirements, but those which do have Terms of Use do not always have sufficiently strong or well drawn disclaimers. The matter has been placed in clear focus by the recent Court of Appeal case. Mr and Mrs Patchett wished to chose a contractor to install their swimming pool who was an expert and reliable and found the Trade Association’s website which provided a list of members and their locations. They relied upon a statement on the site that “Pool installer members are fully vetted before being admitted to membership with checks on their financial record, their experience in the trade and inspections of their work”. Customers would be offered a Bond and Warranty Scheme by an installer who was a member of the Association. A further statement relied on was “One way of guaranteeing that the pool installation company has the expertise, is to make sure that they are a member of the Association before contacting them for a quotation”. The site showed that the Association supplies an information pack and a checklist providing questions that customers should ask before engaging an installer and making payments to them. The Patchetts did not request the information pack. An installer named on the site as a member was chosen but the installer became insolvent before the work was completed. The Patchetts had to pay another contractor to complete the pool and claimed the loss suffered in the sum of £44,000. It emerged that the installer chosen by the Patchetts was not a full member of the Association but an affiliate member and, as such, there was no obligation on the Association to vet them, and their work was not guaranteed. Accordingly, the Patchetts claimed that the Association’s website had misled them by its statements on the site and that they were owed a duty of care which the Association had breached. By a majority decision of the Court of Appeal only the Patchetts’ appeal was dismissed, largely because the Website had pointed out that potential customers should make further enquiries before appointing a contractor by obtaining the information pack and raising the questions suggested, and that if the Patchetts had done so they would have found out that their chosen contractor was only an affiliate member, had not been vetted by the Association, and was not party to the Warranty Scheme. There was a strong dissenting view from one of the three Lord Justices who said that the intention of the Association’s website was to encourage people to chose one of their member contractors as an installer and that although the paragraph on the website mentioned the information pack this was merely an offer to provide additional information, which the Patchett’s chose not to seek. It did not highlight to a visitor that it was necessary to obtain the pack in order to check the status of contractors who were listed. The dissenting Lord Justice’s view was that the Association had indeed breached its duty of care to the Patchetts because the basic statements made on the website concerning members could be relied on without the need to enquire any further. Although on the specific facts of this case the majority decision of the Court of Appeal was that no duty of care was owed to the Patchetts, the decision highlights the danger of liability for website owners for misleading statements. To cover that possibility it is very important that they should take steps to disclaim liability to visitors from statements made on the site. It is therefore very important for Website owners to ensure that adequate disclaimers are made in their Terms of Use. This is a technical area both of law and practice, and accordingly they should not rely upon Terms of Use or disclaimer clauses which are supplied to them by their website designers, but should seek the advice of solicitors who have expertise in this particular area of law. Brian Eagles, Partner, Howard Kennedy IP, Media and Leisure Group
Comments (1)
 Best Information Posted by Charles, 11 December 2009
That was really fantastic and I thank you very much for sharing and I am really glad.
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