Misleading and Updating

August 14, 2013

The most recent of many judgments in a complex libel claim brought by Gary Flood (see {i}Flood v Times Newspapers Ltd{/i} {[2013] EWHC 2182 (QB): http://www.bailii.org/ew/cases/EWHC/QB/2013/2182.html}) has set me thinking about the numerous inaccuracies on the SCL web site. While the case itself is important in terms of libel, where high standards of updating might very reasonably be required, the idea that the reasonable reader who comes across archived material may treat ‘it as speaking as at the date on which it is being read’ fills me with horror.

I have no argument with the decision of Tugendhat J in the particular context (he’ll be relieved). The Times has the resources and the standing to make a better effort than just adding (as they did in this case) a notice to the effect that an article that Flood was under investigation for taking illicit payments as a police officer was ‘subject to legal complaint’ when he had subsequently been effectively exonerated. The court appears to take the not unreasonable view that, since the requirement that newspapers update their archived articles with qualifications to reflect changing facts is well-established in relation to Reynolds privilege, the newspaper should get the qualification of the original article right. The ‘subject to legal complaint’ notice might have been briefly appropriate but the investigation moved on and that notice may have given the impression that allegations have not in fact been investigated or resolved. Putting in a notice like that may even be worse than having no qualification to an article at all.

But I would sleep easily in my bed if the principle of ‘speaking on the date on which it is read’ was confined to libel. Is it?

What are the expectations of the reader of an article online which is accessed from a web archive? Does the reader know what the web site publisher knows, namely that it is from archive? Should I be scrabbling through our massive archive and updating those reports of cases that were successfully appealed? Should I be adding warning notices to all those old photos along the lines of ‘NB this author no longer has hair’?

The truth is that, since it is dealing with a fast-changing area like IT and IT law, this web site is wrong most of the time – simply because the law changes so rapidly and, technically, most of the material we hold on our servers is archive so that, to a greater or lesser extent, it is now outdated. What’s more, many of the readers of this blog will probably be in the same position – having published thinly disguised legal advice over many years and knowing that lots of it is no longer current. If the principle of ‘speaking on the date on which it is read’ applies, is there any liability for negligent misstatement?

You will have detected by now that it is harvesting time and that my panic is made largely of straw. Neither you nor I should worry too much – we have disclaimers to protect us, don’t we? The position {i}probably{/i} has not moved on since {i}Patchett and Patchett v Swimming Pool & Allied Trades Association{/i} {[2009] EWCA Civ 717: http://www.bailii.org/ew/cases/EWCA/Civ/2009/717.html}, where a trade body for swimming pool installers escaped liability for information on its site that wrongly suggested a company was a member that had been vetted as being trustworthy; the site’s warning to visitors to make further inquiries was a key factor in the court’s decision. But the dearth of further authority on the point is good reason for caution; that ‘probably’ is important. In the {i} Patchett v SPATA{/i} case, the absence of a duty of care was crucial. Lord Clarke said (at [39]-[40])that to rule that SPATA owed a duty of care to the claimants ‘would be an unwarranted extension’ of existing case law:
‘even though nothing I have said is intended to detract from the conclusion that it is important that information put into the public domain is accurate. When application was being made for permission to appeal it was suggested that special considerations apply to representations on websites. 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. Some websites are interactive and it may be possible, applying the principles outlined above, to conclude in particular circumstances that a duty is owed. However, I agree with the judge that that is not the case here.’

So ‘interactive sites’, whatever they might be, might have a duty of care to the public in general – and it is likely that I have a duty of care to SCL members and that you have a duty to prospective clients. I am OK because members of SCL can be safely assumed to know that the law changes and facts change, but I am not so sure about your web site readership. It is worth remembering too that Lady Justice Smith gave a dissenting judgment and that Mr Patchett was that one web site user in a million who had actually read the disclaimer that applied to the relevant pages – it is hard to believe that that did not influence the ruling.

At the time of the {i}Patchett{/i} case, Struan Robertson and Simon Deane-Johns had an interesting exchange about the need for more prominent disclaimers (it is {here: http://www.scl.org/site.aspx?i=ed12761} and I do not want to repeat that. The truth is that my head agrees with Struan – that we should be littering sites with disclaimers – and my practice agrees with Simon – we have got a disclaimer in there somewhere and the court says that’ll do (I disclaim all liability for inaccuracy in paraphrasing their views).

Now that we all have access to web stats that show that nobody reads our general disclaimers and T&Cs, can we really rely on them?

A very quick survey of law firm sites suggests that prominent disclaimers are by no means universal – {i}and that’s lawyers!{/i} Some sites have disclaimers that are so cosy that a reader might well think, ‘it is nice of you to offer further support but you have answered my question definitively already’ and many blog posts have disclaimers at the bottom of a page that contains three or four posts so that a lengthy scroll would be required to see it. And I was astonished to find that one or two sites had no disclaimer that I could find at all (no doubt it was on a page somewhere). Even since {i}Patchett{/i} reliance on web-based information has increased sharply, are we giving enough by way of warnings?

My jumping-off point was the latest judgment in {i}Flood v The Times{/i}. I think that may have shifted the position by an inch or two. It is not hard to see an argument that the judgment imposes a greater liability on those who update inadequately because, in the very act of updating, you create an expectation that what is said is up to date. One doesn’t want to make too much of a judgment on a narrow point in a libel action but you can be sure that somebody will make a lot of it in future litigation over negligent misstatement. It might be worth adding a few words to your disclaimer or web site T&Cs about your web site information ‘speaking’ only to the time of publication, and emphasising that you accept no duty to update as the law or facts change, or to do so accurately or comprehensively.

That might not do much for your credibility but it might do wonders for your insurance premiums.