We speak to a lawyer from Olswang following our story on the web designer who replaced a client's site with a image of an invoice.
Last week we reported on the tactics of a web designer who had replaced the sites of a client who she ciaimed had not paid her bills with a JPG of the invoice. We attempted to contact the designer to check its veracity, who has not responded. The story caught the imagination off many of our readers, some of whom questioned the legality of this kind of 'revenge'. We caught up with Ashley Hurst (above), a partner at media specialist law firm Olswang to find out if this kind of behaviour will end you up in court.
(We should mention here that while the story we reported was in the US, both Ashley and Digital Arts in the UK, and his comments refer to behaviour in this country).
DA: While the kind of revenge carried out by the designer we've featured is appealing, can it get you in trouble legally?
AH: "It is a slightly risky strategy. The main risk of a similar strategy in the UK would be a libel claim. The posting of the allegedly unpaid invoice would be tantamount to a statement that the customer doesn't or can't afford to pay its debts, which is defamatory.
"If that allegation is true, it's fine – but if there is a legitimate reason for not paying or if the customer has paid, the web developer could be on the receiving end of a libel claim."
DA: Is taking down a website a legitimate course of action if a client hasn't paid you?
AH: "It will depend on the terms of the contract but potentially yes. Most website developers and hosts will reserve the right to suspend the website or stop carrying on their services if they don't get paid on time.
"There would be no libel risk if the website developer simply took the website down. Making a public statement is more risky – it might speed payment up though if the debtor is worried about damage to its reputation."
DA: What's the best course of action to get what you're owed from UK-based client who hasn't paid you?
AH: "If the debt is undisputed, issuing a statutory demand is often the preferred route. The debtor will then have 21 days to pay or else face the risk of a winding up petition. If the debt is disputed – for example, if the debtor thinks he didn't get what he bargained for – the better route will be to sue or threaten to sue for breach of contract."
DA: What about if they're overseas?
AH: "If the debtor is overseas, there might be an issue over which country has jurisdiction to decide any dispute as to non-payment. But normally the standard terms of the developer will state which country has jurisdiction and so the creditor can sue in that jurisdiction and then seek to enforce the judgment oversees with cooperation of local courts if necessary."