NORTH DEVON HEALTHCARE NHS TRUST
1.1We have been instructed by North Devon Healthcare NHS Trust ("the Trust") to advise in connection with the potential liabilities that may attach to the Northern Devon Neurological App Database ("the Website").
1.2The Website has been described as a 'trip advisor' for applications that may have benefit to patients recovering from stroke. The applications are not being marketed as having a medical effect but the Website is intended to identify applications which may help with restoring fine motor skills (i.e. popping balloons).
1.3It is intended that the Trust's clinical team will initially evaluate the applications and if they believe that an application has potential benefit, the application will be passed to patients for review. The aim of the Website is to save patients time and money by directing them to the applications that are being recommended highly. The Website will provide guidance about the particular skills that each application is beneficial for.
1.4This paper sets out the potential liability that may attach to the Website and in particular the reviews function within the Website.
2.1The following laws and regulations apply to contractual liability in the UK:
2.1.1Sale of Goods Act 1979. This applies to contracts governed by English law or if the consumer is located in UK.
2.1.2Sale and Supply of Goods to Consumer Regulations 2002. This applies to business to consumer contracts governed by English law or if the consumer is located in UK.
2.1.3Supply of Goods and Services Act 1982. This applies to contracts governed by English law or if the business to consumer contracts, where the consumer is located in the UK.
2.1.4Sale and Supply of Goods Act 1994. This applies to contracts governed by English law or if the business to consumer contracts, where the consumer is located in the UK.
2.2We understand that the Website will not be selling applications or other goods to users of the Website. Therefore these laws and regulations will not apply in respect of the Website.
3.1Any living individual can sue for libel. A company may sue for libel only in respect of statements that damage it business reputation. There are no special defamation law relating to the internet in the UK and the position is therefore governed by the general law on defamation. To bring a defamation claim, a claimant must show that:
3.1.1the words of which they complain have a defamatory meaning. A defamatory meaning is one that, in the circumstances of publication, tends to lower the claimant in the estimation of right thinking members of society generally;
3.1.2the words refer to them;
3.1.3the defendant was responsible for publishing them to a third party.
3.2Once the claimant's case has been established, the burden of proof shifts to the defendant to show a defence on the balance of probabilities, either that:
3.2.1he is not responsible for the publication;
3.2.2the words were true or the comment was honest;
3.2.3the report was privileged (however, this defence is unlikely to be considered as it is less likely to be applicable to websites).
3.3Every person who is responsible for a defamatory publication is a potential defendant: author, editor, informant and distributor. Anyone who sets up and operates a website can be liable for libel as well as an internet service provider.
3.4Every repetition of a libel gives a fresh cause of action against the persons responsible for the repetition. Therefore, if a defamatory statement was posted on a bulletin board and was subsequently picked up and repeated by further postings to bulletin boards then each separate posting would constitute a separate libel.
3.5There are a number of defences available against claims for defamation:
3.5.1Innocent defamation: if a defendant can show that he was not the author, editor or publisher of the statement complained of, took reasonable care in relation to its publication and did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
3.5.2Justification: truth is a complete defence to any defamatory statement of fact, whatever the motivation for its publication and whether or not it is contrary to the public interest. The defendant must show that their allegation is substantially correct. It is not necessary to provide that every single detail is accurate, so long as its defamatory impact is substantially true.
3.6A claimant has only one year from the date of publication of a defamatory statement to sue for defamatory.
4.1We understand that the Website is intended to be used simply as a database of applications and will not collect or process personal data of its users. On this basis, it is unlikely that the Website will be covered by data protection legislation, however, if users can send personal data to the Trust, then the Trust will need to comply with data protection legislation.
4.2In summary, the processing of personal data in the UK is governed by the Data Protection Act 1998, which provides that, in general, personal data may only be processed if the data subject has given his consent, or processing is necessary for the performance of a contract with the data subject. Companies operating websites would be considered data controllers (i.e. person who holds personal data, that is, he controls how and when the data are processed) and must ensure that all data are processed in accordance with the Data Protection Act 1998.
4.3Please let us know if you would like further information regarding the data protection legislation.
5.1Compliance with the issues set out below will ensure the Trust's liability is minimised as far as possible. The Trust should therefore:
5.1.1ensure all statements of fact on the Website can be proved to be true. If a statement is a comment rather than a statement of fact, it should be made clear that it is opinion and not fact, and the opinion expressed should be fair.
5.1.2Take care not to make misleading statements and always compare like with like;
5.1.3ensure that in making the statement, the sole intention is to promote the business of the company and not in any sense to damage the business of a rival, or any other improper business. In the case of business competitors, this may be difficult to provide, and therefore, it is safer to avoid comment and stick to verified facts.
5.1.4seek legal advice in advance about compliance with data protection legislation if personal data on Website users are to be processed.
5.2Furthermore, it is advisable for the Trust to have terms and conditions dealing with access to and use of the Website. We have previously prepared a draft for the Trust which includes provisions limiting the Trust's liability in connection with the use of the Website. In terms of incorporating the terms and conditions, the Trust should try and take visitors to the Websites to the Website's terms and conditions and be required to click an 'accept' icon before being permitted to move through the Website. Alternatively, the Website should include a prominent notice stating that, by using the Website, visitors are deemed to have accepted the Website's terms and conditions and provide a link to the terms and conditions.
6.1We have prepared the draft terms and conditions for use of the Website which includes terms setting out how visitors may use the Website and details of the Trust's liability in connection with the use of the Website. We consider the draft terms minimise the risks to the Trust, however, the Trust will need to consider how the terms and conditions are incorporated in the Website to ensure that all use of the Website is subject to the terms and conditions.
6.2Please do not hesitate to contact us if you have any queries in connection with the issues set out above.
BEVAN BRITTAN LLP
3 February 2016