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Website operators can owe duty of care to users

07 October 2009

The first case to consider statements made on websites opens the door to claims for negligent misstatement.

The more ‘interactive’ a website - the greater the risk, and businesses should review their websites and seek to limit the risks. 

In Patchett and another v Swimming Pool Allied Trade Association Ltd (SPATA), the Patchetts used SPATA’s website (a trade association) to locate and hire contractors.

The website stated that members of the trade association were vetted, financially sound and produced quality workmanship, backed by a guarantee from the trade association.

The Patchetts, relying on these statements, contracted with a member of the association.  Unfortunately, the contractor became insolvent, and the Patchetts could not benefit from SPATA’s guarantees as the contractor was only an associate SPATA member, not a full member.

The Patchetts brought a claim for losses flowing from negligent misstatement, arguing that they had relied on statements on the website that were inaccurate and misleading because the contractor was incompetent, became insolvent, and provided installations which did not benefit from the guarantee.

The Court of Appeal held that SPATA did not owe a duty of care to the Patchetts. Although SPATA knew that the representations on the website would be likely to be acted upon by people like the Patchetts, it would not expect them to do so without further enquiry.

It was necessary to look at the statements made on the website as a whole, and those statements included reference to an information pack supplied by SPATA. The court concluded that this urged further enquiry. SPATA could reasonably expect potential customers to have regard to all the information potentially available from the website and not just part of it, and to obtain an information pack. 

If the Patchetts had asked for the information pack and the list of members referred to on the website, it would have become immediately apparent that the contractor employed by the Patchetts was not a full member and not covered by the statements made on the website.

The comfort for website owners is that the court stated that a website must be considered as a whole. It was not reasonable for users to rely on some of the information on a site, whilst ignoring other information; for example, obtaining further information that was freely offered or carrying out independent checks. 

However, it was stated that in other situations, perhaps where advice was being given through a website directly to a specific user, a duty of care might arise.

What does this mean?

No different legal principles apply to statements on a website than to those anywhere else in the public domain. The question of whether a duty of care is owed depends on the circumstances.

The Patchetts might have succeeded if the website did not contain a statement that an information pack was available, which, it was successfully argued, urged enquiry that would have clarified the statements made on the website. Also, it probably did not help the Patchetts’ case that Mr Patchett admitted reading about the information pack, but did not request a copy.

If a suitable disclaimer had been present on the website, the Court of Appeal’s decision would have been far easier.

The case does not mean that all website owners will owe a duty of care, but the more interactive the site the greater the risk. 

The case highlights the need for accurate information and suitable disclaimers to be present on websites.

What should you do?

A review of the legal and commercial issues regarding your website should be undertaken. In particular:

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Zoe Llewellyn

Solicitor
T: 03700 86 8983
I: +44 (0)118 965 8983
E: zoe.llewellyn@shoosmiths.co.uk