In a ground–breaking decision, the court of Appeal has concluded that, although a website owner can owe a duty of care to its users; this is applicable only where the relationship between them is sufficiently proximate. According to the judgment, where websites encourage users to access further information regarding content, this duty can effectively be ignored.
The case concerned the trade organisation, SPATA, and Mr Patchett. In order to find a suitable contractor to build a swimming pool, Mr Patchett accessed SPATA’s website. The site listed various member organisations and contractors. SPATA also endorsed different members and encouraged potential customers to access the Contract Check List before securing a contractor. The claimants read the website but admitted they did not access this list.
The Patchetts hired Crown Pools Limited, an organisation listed on SPATA’s website, to install a swimming pool. However, Crown then became insolvent and a different contractor had to finish the work. The Patchetts tried to claim their loss from SPATA, arguing that there had been negligent statements on its website regarding membership status of organisations, and that SPATA had breached a duty of care owed to them.
To establish whether a duty of care existed, all judges agreed that there needed to be a sufficiently proximate relationship between the website owner and the users. The Master of the Rolls, Lord Anthony Clarke, and Scott Baker LJ, agreed that the website was directed only to those wishing to install swimming pools. However, according to Lord Clarke, the website would be looked at as a whole, and as the site encouraged “independent enquiry” by accessing a Contract Check List, the relationship was not sufficiently proximate. He added that although SPATA knew that the representations made on the website were likely to be acted upon by users of the site, it would not expect users to do so without further enquiry and that meant that the duty of care was not established. SPATA’s disclaimer (encouraging further enquiry) therefore avoided liability.
Interestingly, Lady Justice Smith disagreed. In concluding whether a relationship was sufficiently proximate, she found that SPATA were targeting a particular audience and, because further enquiry was not a necessary part of contacting members, she held that the relationship was sufficient. She viewed the contract list as merely an ‘offer’ or ‘option’ for further information, not a necessary link.
Significant statements made by Lord Clarke include the following:
"I do not think that the mere fact that the representations were contained on a website supports the conclusion that a duty of care is owed. As ever, all depends on the circumstances.”
“I do not think that it can fairly be held that SPATA assumed a legal responsibility to the claimants for the accuracy of the statements in the website without the further enquiry which the website itself urged. It is common ground that, if the claimants had asked for and obtained an information pack, they would have learned the true facts.”
“In these circumstances there was not a sufficient relationship of proximity between SPATA and the claimants for these purposes and it would not be fair just and reasonable to hold that SPATA owed them a duty to take care."
As a result of this landmark decision, and as a way to mitigate risk, website owners are now encouraged to adopt prominently displayed disclaimers regarding content.
For the full judgment, please go to: http://www.bailii.org/ew/cases/EWCA/Civ/2009/717.html.