From a liability perspective it is generally the case that just as ordinary telephone companies are usually unwilling to negotiate the terms of supply of their services to individuals and small business, Internet Service Providers (ISP) generally require all but their largest customers to sign their standard internet access agreements.

An ISP will not warrant 24 hour access to the internet as maintenance of its systems and the complexity of the network would not be a commercially prudent step to take. The ISP may have to rely on third party communications service providers to provide access services.

For example, if a company is using a dedicated private circuit to connect its network to the ISP's network, the dedicated private circuit is often provided by a third party telecommunications operator. It is therefore common for standard-form ISP contracts to provide that the actions or omissions of third party telecommunications operators are events of force majeure for which they accept no responsibility.

On the basis that there is no direct contractual relationship between the individual or business user, the rights that you may have when the internet fails can be limited. Notwithstanding that most ISPs will seek to pass off liability by reference to the omissions of the third party communications service, they will also seek to limit its liability for damages by specific clauses in its contracts.

The extent to which it is able to do so will in part be determined by whether the user is a business or an individual consumer – generally limitations are far harder to justify when a person is purchasing the services for their own private use. Standard terms in ISP contracts regarding limitation will typically only benefit the ISP and amounts of compensation are low. Ideally, although this is not always the case, a cap on liability should be the greater of either an entire year's worth of fees or a fixed sum depending on the severity.

Users should expect that the overall cap on damages will be relatively low. ISPs will only very rarely provide a remedy that will fully reimburse the user if the ISP fails to provide adequate service because it cannot afford to do so. This is a risk that users accept when outsourcing the function of obtaining access to the internet, but the risk is usually outweighed by the fact that the ISP can provide the access services more cheaply and to a higher standard than the user.

Should the submission of a return or report to HMRC be delayed by technical issues such as outages, liability for the consequences of late filing (fines or so forth) will, depend upon the terms of the ISP agreement, be excluded completely or limited to the costs of the service. Unfortunately, although we are moving more towards a digital world the consequences of digital failure is something for which there is very little redress.