Website owners should pay heed to a recent decision of the Court of Appeal which made it clear that a website owner who has not taken sufficient protective measures can owe a duty of care to visitors to the site who rely upon information provided on it.
This potential liability can be avoided or reduced by ensuring that the Terms and Conditions of Use on the website clearly disclaim 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 - leaving them non compliant with statutory and regulatory requirements, but those which do have Terms of Use do not always have disclaimers which have been sufficiently well drawn to mitigate against potential claims by visitors to the site.
The recent Court of Appeal case - Gary Patchett & Another v Swimming Pool & Allied Trades Association Limited - put the matter in clear focus. Mr and Mrs Patchett were anxious 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. In choosing their contractor 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.
The Court of Appeal, by a majority decision only, dismissed the Patchetts appeal, effectively on the basis that the Website had pointed out to the Patchetts that they should make further enquiries before appointing a contractor by obtaining the information pack and raising the questions suggested, and that if they had done so they would have ascertained that their chosen contractor was only an affiliate member, had not been vetted by the Association, and was not party to the Warranty Scheme.
The dissenting Lord Justice was of the view 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. Accordingly the dissenting view was that the Patchetts were owed a duty of care and could rely on the basic statements made on the website without enquiring 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 position that website owners can owe a duty of care to its visitors. To cover that possibility it is very important that website owners should take steps to disclaim liability to its visitors from statements made on the site.
Website owners should therefore ensure that adequate disclaimers are made in their Terms and Conditions 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 supplied to them by their website designers, but should seek the advice of solicitors who have expertise in this particular area of law.
For more information visit www.howardkennedy.com
