• Statement made on a third party website that a business was a member of a trade body
  • Business itself unaware of the existence of the statement
  • Can a business be said to have 'made' a representation of a webpage for which it has no responsibility?

What's it about?

The National Guild of Removers & Storers Ltd (NGRS) brought claims for passing off against Bee Moved Ltd (Bee Moved) in relation to adverts placed on websites which appeared after Bee Moved ceased to be a member of the NGRS, but which still described it as an NGRS member.

IPEC found in favour of NGRS in respect of advertisements on Bee Moved's own website, but dismissed the claim in relation to advertisements on a third party's (Really Moving) website. Bee Moved edited its profile page on the Really Moving website to remove reference to its membership of the NGRS. However, an entry on Really Moving's directory page still referred to Bee Moved as a NGRS member.

IPEC held that Bee Moved was not aware of this entry until it received a letter before action from NGRS and possessed no editorial rights over the directory page. A technological error on Really Moving's website caused its systems to crash and replicate itself using a previous version, causing old data being displayed on the directory page, including the reference to Bee Moved's membership of the NGRS. The NGRS appealed to the Court of Appeal.

Why does it matter?

The Court of Appeal dismissed the appeal, holding that the key question was not one of knowledge or intention, but whether Bee Moved had 'made' or was responsible for the representation. Bee Moved's liability for the misrepresentations had to be based on agency, authorisation, procuration, or, at least, implied consent to the misrepresentation appearing on Really Moving's website. None of these grounds of liability had been pleaded.

Now what?

It is reassuring for businesses to know that they are unlikely to be liable for statements made about them which they did not authorise, on websites over which they have no control. However, this case could have had a different outcome if the NGRS had been able to establish any level of implied consent on the part of Bee Moved. Businesses who use third party websites should therefore continue to be vigilant that incorrect information is not being posted about them online.

National Guild of Removers & Storers Ltd v Bee Moved Ltd and others [2018] EWCA Civ 1302