Failure to Update and a Slippery Slope

March 1, 2006

In mid-February I found myself hitting the ski slopes. In one sense this was very enjoyable; in the more literal sense, the bruising has just entered the purple phase and the knee is still creaking. My genuine justification for mentioning my ski holiday is that I booked following a lengthy browse round the Internet for deals and that my current dispute over the accuracy of the information I found, and on which I relied, has set me thinking about wider liability issues. I think that a general failure to update e-commerce and “brochure” sites is creating a little considered problem – and one which might have a big impact on the reputation of some trading companies.

Though wary of boring readers with yet another tale of a disgruntled consumer, my experience does serve to highlight some problems. I booked my holiday through I had seen a chalet deal which had offered a chalet with “spacious” rooms, virtual ski to and from the door and access to a Jacuzzi/sauna complex. I booked the holiday, which was actually a Thomson Holidays package, on the basis of that description. I don’t want to get bogged down in the detail of what amounts to “spacious” or virtual ski in and out – it suffices to say that, applying the same principles, we will sell this house on the basis that it has rooms the size of Versailles and that it is “virtually” in Bath city centre. One thing is for sure, there was no Jacuzzi. In fact, before we left on holiday, Iglu sent us a letter from Thomson which apologised for the fact that the Jacuzzi had not yet been installed and offering a (really quite generous) goodwill payment in compensation.

I am quite sure that when compiling information for 2005/2006 holidays, Thomson relied on the chalet owner’s assurance that there would indeed be a Jacuzzi by the time guests arrived. I am sure too that Iglu acted in all good faith when they posted the relevant information on their site too. But now I know that there is no Jacuzzi and Iglu and Thomson know there is no Jacuzzi, so how come, when I look on the Iglu or Thomson Web sites as I write this, they still refer to access to the Jacuzzi? And, the more interesting question, what forms of liability can arise where what was once true no longer holds true?

Updating and Liability to Consumers
There is nothing new about contractual liability arising from services failing to meet a contractual description or about liability (strictly, quasi-contractual liability) for misrepresentations. Whether a particular description is part of the contract or not can be a matter for debate, but I do not think that there can be any serious doubt that a statement on a Web site can constitute a representation. But all that is trite – if, in my case, Iglu and Thomson need to tighten up their procedures then that is stuff for Watchdog not these pages.

But their failure is just one example of a nearly universal failing. Those of us who post to the Web using content management software know that it is now wonderfully easy to do this. We also know that it is easy to edit and amend so that errors can be corrected. But the truth is that errors are likely to represent only a tiny proportion of the incorrect information that we have posted to the Web.

Let me give Iglu and Thomson temporary relief and shine the light closer to home. Over the last few years I have posted hundreds of articles to the SCL Web site, the vast majority of which are attributed with closing lines along the lines of “Bob Smith is an Associate working in the IP/IT department of Devizes & Co”. Few of those attributions remain accurate – Bob has been made partner, left to go to another firm and now lives in Tahiti doing the occasional painting. I have long been aware of such inaccuracies on our site and hitherto my reaction has been that it was right when I posted it. To put it bluntly, I don’t really care. But sometimes, in law as in the nursery, “don’t care” will be made to care. Much neglected criminal statutes spring to mind.

Under the Trade Descriptions Act 1968, s 14, it is an offence for any person in the course of any trade or business to make a statement which he knows to be false or recklessly to make a statement which is false as to, inter alia, accommodation. In my Iglu/Thomson case, the question arises: when was the statement made? If there is scope for debate, it must be limited – by analogy with the Internet-defamation cases, it seems certain that every viewing of the relevant pages amounts to a fresh making of the statement. Even on the most generous reading, the principles in Wings Ltd v Ellis [1985] AC 272 will leave the publishers with a mountain to climb. There is of course a defence of due diligence under s 24 of the 1968 Act, but not getting round to altering a Web posting hardly gets you close to such protection. Whether the hard-pressed officers of Wiltshire County Council’s trading standards department will want to worry about such a situation is questionable – and it is the existence of many higher priorities (mine and Wilts CC’s) that may save Iglu and Thomson from an embarrassing prosecution.

The fact is that in my trawl across the Internet I found literally hundreds of what I consider to be breaches of what might loosely be described as “trading standards legislation”. The most frequent were what I see as pretty clear breaches of the Consumer Protection Act 1987, s 20. Under that provision, it is an offence to give consumers a misleading indication as to price and even to fail to take all reasonable steps to prevent consumers from relying on an indication which was correct when first given but which has become incorrect thereafter. But the standard form of holiday price indication on these sites is inappropriate to renewed daily publication – virtually all the sites offer holidays at (say) £399 but then indicate that in fact there is a fuel surcharge or (my favourite) a late booking fee in the case of some holidays offered for that very week. Such price indications and surcharges are defensible in a brochure of 200-colour pages printed months before the consumer is to book but cannot be justified in material published that very day, when both the amount of the fuel surcharge and the (inescapable) late booking fee are known.

Estate agents’ sites seemed to me another obvious cause for concern. Some postings were quite obviously very old and, bearing in mind the strict requirements of the Property Misdescriptions Act 1991, seemed likely to have become false or misleading.

Monitoring and Minimising Liability
One question for e-commerce lawyers is whether the understandable focus on the special provision made for e-commerce by EU Directive and the like may have obscured some more basic points which could cause their clients nasty surprises. Do your clients check the statements they make about their products or services at regular intervals? Do they act upon changes in descriptions by editing the relevant Web site file – or just stick a note in a paper file and tell customers about changes after they have rung to order? Are you even sure that your own firm’s claims to expertise and services are monitored regularly and that one of your boasted experts hasn’t left for a rival?

Without a system for monitoring its Web content, any organisation which posts sales information on the Internet is at real risk. That risk is not merely from (toothless?) consumer protection legislation but may arise through simple contract claims, claims for negligent misstatement and even claims in defamation. It is true that the risk cannot be wholly eliminated. In my favourite nightmare example, X may properly be described as a “practising homosexual” in an article published in 1998 but he may conceivably be seriously defamed when the same article is viewed on the Web in 2008, by which time he is a married bishop with three children. The principle that material is published at the time when it is received may take a knock eventually from such cases, but the day-to-day examples one encounters of poorly updated sites and misleading and outdated claims are hardly likely to inspire a shift to a more protective legal principle – protective that is of bad practice. If you are posting material to the Web, you are publishing that material every day until it is archived – and if you care about its accuracy when you post it, you have to care about it being accurate on every subsequent day, including today. Those who allow bad practice to continue uncorrected will get what they deserve – whether by way of legal proceedings or media blitz.

Come to think of it, where is the trading standard department’s telephone number?

© Laurence S Eastham Ltd