Website Disclaimers and a Terms of Use Make Good Partners

James Chiodo, Certified Information Privacy Professional CIPP/US

Website disclaimers can help protect you and your online business from legal liability.

In simple terms, a disclaimer is a statement that denies responsibility with the intention of avoiding legal liability arising from specific acts or omissions.

Website disclaimers (and other disclaimers) are drafted for businesses or individuals to avoid the liability from lawsuits by users, visitors and customers. Disclaimers can also limit a business or individual’s liability to the sum of money that was collected from customers for the goods and services they offer.

If you have a website or blog where users can post comments and or upload content, disclaimers are one of the most valuable tools you can use to protect you from legal action because of comments or content posted by your users.

The laws that govern disclaimers vary from state-to-state and can be inconsistent, and they cannot protect you 100% of the time. However, website disclaimers can be very effective in protecting you if drafted and displayed properly on your website.

Negligence and Fraud

Disclaimers will not protect you from gross negligence or fraud, nor can you try to disclaim every imaginable possibility that might happen. These tactics have been tried before and never hold up in court.

What’s in a Website Disclaimer?

The success and importance of a website disclaimer depend, to a large extent, on how well it’s drafted and presented. The specific disclaimer you should be using depends on the type of website or blog you have. A standard website disclaimer would likely contain some of the following language by itself or incorporated into a larger paragraph:

•  The information contained in this website does not constitute not legal advice, but is for informational purposes only.
•  That no guarantee is made about the accuracy or validity of any information on this website.
•  The website owner is not legally liable for omissions, errors, damages or losses, because of the information or use of the information from the website.
•  That no professional relationship is created between the user and the website owner.
•  That information on the website is copyrighted, and authorization is required to distribute or reproduce it.
•  The information on this website is offered “as is” without warranty of any kind.
•  The information on this website is subject to change at any time with or without notice.

The truncated language above is used for sample purposes only; please do not use it as is for any purpose. See our attorney-drafted website disclaimer if you are looking the proper legal language for business or personal use.

A website terms of use can be a good place for some disclaimers

Your website terms of use is a good place for some legal disclaimers that do not require compliance with state, federal, or FTC “Clear and Conspicuous” regulations. Properly drafted disclaimers are legal documents that can help limit the website owner from legal liability by transferring the responsibility from the website owner to the user or visitor. For many website owners, they are the first line of defense against legal problems.

As previous court cases have demonstrated, to be enforceable, a website terms of use or terms and conditions usually (but not always) has to be agreed to by checking some type of box by the user that they have read and agree to the terms of use. By having a user check a box that they agree, it is similar to them signing a traditional contract. In the end, your terms and conditions agreement (and privacy policy) are legal contracts with your users and are enforceable in court.

An attorney-drafted terms of use should contain these disclaimers:

•  Content disclaimer
•  Errors and correction’s disclaimer
•  Legal and advice disclaimer
•  Advertiser disclaimer
•  Merchant disclaimer
•  Warranty disclaimer
•  Liability disclaimer

Ok, it sounds convenient, just put all your disclaimers in your terms of use, get your users and customers to agree, and you are covered. Well, it is not quite that simple. Even if a user agrees to your terms of use, some disclaimers within your terms of use may not protect you because of state laws, federal laws and FTC regulations.

For example; medical, health, earnings, and paid endorsement disclaimers are required by FTC regulations to be posted in a clear and conspicuous position on your website or blog. Putting these types of disclaimers in your website terms of use will provide you with little or no protection from legal liability.

What does clear and conspicuous mean?

Well, as usual, the law is a bit vague about the definition. However, what is clear is this; what are the chances of a visitor to your website actually seeing your disclaimers? Clearly, one could argue exactly what that is. When referring to past court cases it becomes clear that anything below the fold of a website page where a user has to scroll down becomes far less likely to qualify as clear and conspicuous. Furthermore, posting disclaimers in a smaller font in the footer of your website will be of little value.

So where and how should I post disclaimers to protect me?

Website disclaimers that fall under the “Clear and Conspicuous” guidelines should be posted such that a user or customer will see them before they use or buy products or services from you.

As an example; a warranty, content, advertiser, merchant and some other disclaimers put in your terms of use are probably fine; however, earnings, medical, health, fitness and some other disclaimers are required to be posted in a more obvious spot prior to a user purchasing or using information and or services from your website. Since this area of the law is open to some interpretation, if you are selling products or services that require specific disclaimers, you might want to review the FTC guidelines and requirements to help determine the best placement for your disclaimers. Click here to download the FTC guidelines for disclosures.

And for the 95% of website and blog owners who bury their website terms of use, privacy policy and disclaimers in the footer of their website in a smaller font, well good luck, because doing so is almost like not having any polices at all. And as far as legal protection goes; don’t expect any.

Some Examples of Website Disclaimers would include:

Content Disclaimer
Opinion Disclaimer
Earnings Disclaimer
Medical Disclaimer
Exercise Disclaimer
Trademark Disclaimer
Video Disclaimer  
Liability Disclaimer

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