Website taken offline and disabled by volunteer

[Peter Reynolds]

I run a not for profit campaign group which relies on membership fees and donations for income.

Our website developer resigned from our committee and changed the login to our PayPal account through which we receive all our income. He also changed logins to several other accounts, most importantly our web hosting company and he took our website offline.

After about three weeks he eventually handed over all logins and we regained control. In the interim we lost a lost of income. However, we have now discover that he has removed vital files from our website which means it cannot function. In the meantime we have created a new temporary website but we need the original one back and working.

I intend to apply for an order for specific performance (OSP) requiring him to restore the websites to the condition they were in before he resigned. In the same claim I will also seek damages for the loss of income which is continuing as so much of our service and campaign depends on the content and functionality of the original website.

Questions:

1. Should I apply for the OSP and in the alternative for damages equivalent to the cost of getting someone else to repair the website?
2. Must I specify as well as I can the loss of income, remembering that it is likely to continue for some time until we fully recover?

[EXC]

Re: Website taken offline and disabled by volunteer

Do you have a written contract with the developer?
[MENTION=6]Amethyst[/MENTION]

[Peter Reynolds]

Re: Website taken offline and disabled by volunteer

No. he was a volunteer as am I and everyone who works for our group. He was appointed to the role of IT Director on our executive committee. He now claims the website is his copyright. The basis of the claim is that he donated his time and work to the group.

[EXC]

Re: Website taken offline and disabled by volunteer

What type of entity is the group ie Ltd company/unicorporated partnership?

Also what approximate sum would the 3 weeks lost income be?

[EXC]

Re: Website taken offline and disabled by volunteer

Also (sorry) who is the website domain registered to?

[Peter Reynolds]

Re: Website taken offline and disabled by volunteer

We are an unincorporated membership association. The three week's lost new membership income would be about £600 at £200 per week. We are now in about week 15 and new membership income has dropped to about £50 per week as a result of the vastly reduced temporary website and we are no longer able to mail our Daily News to 2,000 subscribers. The only thing that has kept us afloat is social media where we have nearly 700,000 followers.

The domain is registered in the group's name with me as the contact.

[EXC]

Re: Website taken offline and disabled by volunteer

Ok thanks.

I'm not familiar with OSPs but just having a quick read up it appears that it's a remedy for a breach of contract. In the absence of any written contract you may face a bit of a hurdle in establishing the terms of what seems to be a verbal contract. Apparently they can be used alone or in conjunction with a claim for damages. Quantifying any loss needs to be carefully considered ie accurate, attributable and demonstrable

It seems to me that your first priority is to get the website back up and working properly. Is it a custom build or Wordpress or similar?

I've asked someone to take a look at this and give you her thoughts.

[Peter Reynolds]

Re: Website taken offline and disabled by volunteer

It's really about our ex-volunteer, let's call him D, causing malicious damage to our website after he had resigned. D can put it right quickly and easily. To get someone else in might cost £10,000, easily.

[EXC]

Re: Website taken offline and disabled by volunteer

Yes I undestand, it's just figuring out which is the most appropriate/practical/cost effective action to take.

Let's see what [MENTION=6]Amethyst[/MENTION] suggests, she'll be on a bit later.

[Amethyst]

Re: Website taken offline and disabled by volunteer

I really do feel for you having to deal with this. Basically before you can bring a claim for specific performance you must demonstrate that you are legally entitled to the IP and retain ownership of any work he undertook whilst acting as Website Developer / IT director.

We're going to need to know a bit more about the ownership of the website ( & forum? )

You have mentioned regaining the passwords etc. Have you changed all the account owner/contact information with the hosting company etc ? The Domain name is in your name - is the domain name provider account in your name too ?

Have you asked your hosting company about a roll back ? Is the site regularly backed up ? Is the account with them in your name now?

Do you know exactly what files have been removed ? ( are they plug ins that can easily be replaced for example?)

If D is claiming it is his intellectual property it could get difficult.

You have a committee, any agreements /resolutions regarding ownership of IP of the website ?
How long has he been involved ? Did he build the original website ? Who purchased the software licences etc ?
Has D made any 'demands' of you? Financial recompense for the work he's done on the website maybe ?
Do you have evidence of the website operation before he removed files ?
Regards access to paypal - did he take any of the paypal funds ?

To have him come in a 'fix' his mess, he is going to need to be given back access to do the work. Of course the specific performance order can carry a penalty for non compliance however does he have anything to lose ? (house etc) I'd be concerned that letting him back in to sort out backend issues would be a risk that more could be lost instead.

1. Should I apply for the OSP and in the alternative for damages equivalent to the cost of getting someone else to repair the website? depends on above really
2. Must I specify as well as I can the loss of income, remembering that it is likely to continue for some time until we fully recover? yes if you can demonstrate the loss of income is directly related to his actions.

[Peter Reynolds]

Re: Website taken offline and disabled by volunteer

All the account owner/contact information with the hosting company and the domain registrar is secured.

D deleted all back ups. A roll back is not possible.

The files that have been removed are the Python files that create the website and its functionality. These are the same as the Wordpress files in a Wordpress website. D has left the database containing all the content on the server and his position is that we should create a new website and import the database into it.

D is claiming the website is his intellectual property. We have no specific agreements/resolutions regarding ownership of IP of the website. He has been involved since 2011 and was appointed to the exec as IT director in October 2015. He did build the website. The group itself purchased the software licences. he has made no demands of the group. His motive seems to be nothing but malice. He resigned after a disagreement on policy.

The old website can still be seen using the internet archive 'Wayback machine', so that is evidence of its previous operation.

No he took none of the PayPal funds - as far as we know.

I fully appreciate that the IP issue is the nub of both claim and defence. However, it seems clear that as a volunteer he donated his time and the work he did to the group. Just as with those who make cash donations to the group, they are not entitled to ask for them back afterwards!! We have plenty of evidence by his own hand that he was working as a volunteer.

I see no way forward except to issue a claim. I am halfway through drafting the PoC. He has clearly caused damage both to our continuing operations and to the website. I understand how to plead for damages for loss of income, etc. The Q is tactical whether to apply for OSP or just damages for re-creating website. The thing is damages could never properly replace original as it was custom built for us.

In the end, if, as seems fairly straightforward, we can establish he did cause the damage, the lowest cost, best, most efficient and preferable solution is for him to fix it. If we give him temporary access to do this, he cannot make anything worse than it already is as we have backups of the database.

[Amethyst]

Re: Website taken offline and disabled by volunteer

Perfect thank you.

D deleted all back ups. A roll back is not possible.

Directly off the server? Swine. No externally held backups ? ( our hosting co hold our backups on a separate server that even I can't access )

So

I fully appreciate that the IP issue is the nub of both claim and defence. However, it seems clear that as a volunteer he donated his time and the work he did to the group. Just as with those who make cash donations to the group, they are not entitled to ask for them back afterwards!! We have plenty of evidence by his own hand that he was working as a volunteer.

If he were an employee then the IP would definitely belong to 'the group' as his employer. It is harder with volunteers. That is going to be the argument I think, from his side.

Some volunteers may carry out creative or technical work which may give rise to intellectual property rights. While intellectual property rights arising out of the normal duties of employees may belong to the employer, there is no such presumption in relation to volunteers. It is therefore advisable to include a clause in the volunteering agreement that they will assign any intellectual property rights to the organisation.
When volunteers are being asked to sign agreements, it is important to reiterate that there is no mutuality of obligation to avoid creating a contract of employment.

Just having a look to see if there is anything useful you can use case law/legislation wise.
( helme v maher - doesn't really help in that his removal of the website would be deemed revocation of any implied licence )

Ah also - did he write the Python coding ?

[Peter Reynolds]

Re: Website taken offline and disabled by volunteer

Yes, he wrote the Python coding during time he donated to us as a volunteer.

By definition, D was trusted with total access to and control of all our websites and IT. He had to be to do the job he volunteered for. It's clearly a breach of trust in personal, layman terms but is the legal concept of 'breach of trust' of any help or relevance?

[Amethyst]

Re: Website taken offline and disabled by volunteer

Do you have any volunteer policies at all ? eg. when someone joins your team as a volunteer is there a code of conduct or anything like that?

[Peter Reynolds]

Re: Website taken offline and disabled by volunteer

No. And obviously that makes me feel very stupid!

Still there is no doubt that he has caused harm by disabling our website. He admits in writing. The Q is how to draft an effective claim for that.