Like me, you may have had to suppress an involuntary smirk at the news that Alex Tew's deceptively simple Million Dollar Homepage idea has proved not to be so simple after all. Mr Tew had just hit the full $1m, collected from a fascinating assortment of the great and not-so-great willing to pay $1 a pixel to appear on his website, when his site was struck by a denial-of-service attack from blackmailers.
This raises two interesting questions: is there anything (legally) he can do about the attacks; and do the attacks make him vulnerable to actions from third parties?
In relation to the former, we have seen recently the difficulty of bringing successful prosecutions in the UK under the Computer Misuse Act for denial-of-service attacks. In any event, it appears that the culprits are based somewhere in Russia, which is likely to make tracking them down and either prosecuting or pursuing a civil action against them rather problematic. The website is now up-and-running again, but I suspect that Mr Tew has had to splash out a wodge of his (hard-earnt?) cash on his new DDoS-prevention technology.
The flip side of the coin is that poor Alex may have left himself vulnerable to actions brought by the customers advertising on his site. Within days of putting the site up again, he will have heard that his final customer intends to sue him for breach of contract and negligence. Unsurprisingly, given that the final 1,000 pixels went for $38,100 on eBay, the purchaser is a bit miffed that the homepage was "extremely slow loading or completely unavailable" (as Alex puts it) for six days.
I suspect that the breach of contract claim might relate to Tew's terms on eBay, though a number of these provisions are familiar from those appearing on his own page. In particular, these are of interest:
"The site and homepage will be online for at least 5 years (starting from the day it launched), so at least until 26th August 2010, but possibly even longer (that's the aim)" (states the homepage)
"The site and homepage will be online for a guaranteed 5 years (starting from the day it launched), so at least until 26th August 2010. However the aim is to keep the site online for decades to come" (Alex states on eBay)
"There might be occasional downtime for site maintenance but I'll try and keep these to a minimum" (both website and homepage)
Tew also claimed as part of his auction on eBay that "the site will be online for the next 5 years guaranteed".
Though it is a little late now, Alex might wish he had been a little less bold when setting out his contractual obligations, particularly when relatively large sums of money started flying about.
The terms do not include a "force majeure" provision to exclude his liability if the site were to be offline for reasons beyond his control and there is no exclusion of liability for indirect losses or loss of profits caused by any breach of contract. There is also no general cap purporting to limit his liability, for example to the amount paid for the pixels in question. As the six days offline are unlikely to be convincingly described as "for site maintenance", there is little to protect Mr Tew in his site's ts and cs.
The idea of the homepage may be inspiring for those harbouring entrepreneurial ambitions, but it also serves as a reminder of why it is worth looking carefully at your terms and conditions before you start raking in the money. Those operating a website may want to take another look at their ts and cs to make sure they do not give rise to any unnecessary exposure.