Friday July 31st 2009, by Piers Strickland
Most people (especially cautious creatures such as lawyers) worry a bit when posting content online in blogs etc, especially anything which could be considered to be “advice”, legal or otherwise. The thought of some nicompoop relying on a blog instead of paying for proper detailed advice can keep website owners up at night. The Court of Appeal of England and Wales has kindly added to that paranoia. Many thanks, M’Luds.
In a case about a disclaimer on the website of a pool installers’ trade body, SPATA (Gary Patchett And Karen Patchett V Swimming Pool & Allied Trades Association Ltd), the Court of Appeal had to decide whether the disclaimer provided on SPATA’s website was effectively brought to the Patchetts’ attention to enable SPATA to escape liability.
The case was quite complex and entailed a review of the long-standing English case law surrounding exclusion clauses, including the case of Hedley Byrne v Heller. This old case set out a test for deciding the scope of a duty of care between advisor and advisee.
Altough SPATA won, the take away message from this case is that exemption clauses should be located on the same page as any “advice” given on a website. Hence, if your website has blogs or articles on it, then a link or reference to the exemption clause in question should be clearly visible on the same page. Constructing your site like this would increase the chances of any exemption clause at least being effectively brought to the attention of the relevant reader. (Whether the exemption clauses will be effective themselves is another question and will be determined by how well they are drafted.)
This court decision will be important in terms of Website Law / Web Law. Many (cautious) website owners will be reviewing their website terms and conditions and exemptions nervously in light of this new decision.
This case further serves to emphasise that Website Law / Web Law does not stand still. In order to maximise the chances of websites being fully compliant with the various “website laws”, website owners should seek periodic legal advice to ensure that they are minimising their exposure to legal liabilities, for example by tweaking their exemptions clauses and website terms of use.
