The law requires that privacy policies, disclaimers, and other disclosures be displayed on your website or blog in a “clear and conspicuous” location that is obvious to visitors and customers.
At first glance, the phrase “clear and conspicuous” doesn’t seem to have an exact definition. However, the general definition given by most federal and state regulatory agencies is the following: the language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color.
In addition, according to the attorneys with whom we work, you should present all words in CAPITAL LETTERS, just the way that they are presented in legal documents. This is a legal requirement; a change to lowercase or smaller font may decrease your protection under the law.
You should link the following documents (1 through 6) to your website or blog’s navigation system so that they appear on all of your pages in accordance with the “clear and conspicuous” guidelines previously presented. For complete details and Federal Trade Commission (FTC) guidelines regarding “clear and conspicuous” placement, visit:
In terms of the other documents (7 through 11), see the guidelines and information presented in the following paragraphs.
- Website Terms and Conditions
- Website and Blog Disclaimer
- Fitness and Exercise Disclaimer
- Medical and Health Disclaimer
- Earnings Disclaimer
- Website Copyright Notice
- Video Disclaimer
- Online Behavioral Advertising Disclosure
- Opinion Disclaimer
- Disclosure of Material Connection
It is better to offer too much information rather than too little, especially considering the fact that, as your business grows, you might forget to add the provisions accommodating that growth.
PLEASE NOTE: In the “California Do Not Track” section, you will choose whether to “Obey” or “Not Obey” the “Do Not Track” signals in compliance with the new California law, A.B. 370, which requires that website and blog owners disclose the ways in which they will respond to a visitor’s web browser’s “Do Not Track” signals. The new law does not require that you choose “Obey.” It simply requires that you disclose how you will respond to a web browser’s “Do Not Track” signals. In fact, more than one attorney has recommended choosing “Not Obey” instead of “Obey” because, by choosing “Obey,” you might find yourself obligated to make additional disclosures regarding exactly how you will do this, an effort that could be challenging, to say the least.
2. Website Terms and Conditions
This last detail is especially important if the information on your site is ever misused. Within a website’s terms and conditions agreement, you can create a significant amount of control over the activities that occur on your website or blog. Through the use of specific disclaimers and guidelines, the terms and conditions agreement also limits your responsibility and liability.
When a customer or user of your website or blog agrees to your terms and conditions, a legal contract has been created between you and him or her. By clicking “I agree,” the customer or user has “signed” the contract (i.e., the terms and conditions). Consequently, the courts consider the terms and conditions agreement an enforceable contract.
What if I have a terms and conditions agreement, but I do not have an “I agree” button for the customer or user to click?
Many online operators who have a terms and conditions agreement on their websites or blogs do not require that a user or customer click on “I agree” before entering the website or making a purchase. This is not a good way to protect yourself. The courts are far less likely to enforce a website’s or blog’s terms and conditions agreement without a requirement that the customer or user click some type of box or button indicating that the customer or user agrees with the terms and conditions.
3. Website and Blog Disclaimer
An attorney-drafted website and blog disclaimer can help protect you from lawsuits and legal damages. However, a poorly drafted disclaimer, or the absence of one, can subject you to lawsuits and legal damages. In simple terms, a disclaimer transfers responsibility from one party to another. In terms of your website or blog, your objective is to transfer responsibility from you to your customers, members, and visitors. A disclaimer does this by taking a foreseeable event and transferring, from a website or blog operator to a user, the risk that it presents.
4. Fitness and Exercise Disclaimer
Ideally, a fitness and exercise disclaimer should be seen by users or customers BEFORE they watch or listen to any instructional videos, MP3s, MP4s, or other information that provides instruction in exercise or that constitutes any other type of fitness/training program. If you sell or ship physical items (i.e., videos, books, pamphlets, recordings, etc.), you should include a copy of this disclaimer with all of your products, whether you ship them or whether the customer downloads them from the Internet. If you teach personal fitness classes, you should require that all participants sign and date a disclaimer; you should then keep these disclaimers with your records.
5. Medical and Health Disclaimer
To guarantee maximum protection from legal liability, you should ensure that visitors, customers, or other users see your medical disclaimer BEFORE they see or use any medical or health-related information that you sell or give away, either online or offline. Such information includes books, pamphlets, MP3s, MP4s, videos, or any other form of instruction that visitors, customers, or users can download from the Internet. If you sell your medical or health information as a physical product, make sure that you package a copy of your medical disclaimer with the item in such a way that your customer or user sees the disclaimer before he or she uses the product. As mentioned previously, any disclaimer that comes in the form of a link buried at the bottom of your webpage, or that is hidden within your website, will do little or nothing to protect you from legal liability.
6. Earnings Disclaimer
The FTC maintains strict guidelines for, and pays close attention to, companies that sell money-making opportunities or investment advice. Like most disclaimers, to provide some protection from legal liability, you must present your earnings disclaimer to the customer or user BEFORE he or she purchases or uses your product, service, or advice. If you fail to present the disclaimer at this time, do not expect that it will protect you should a customer file a complaint.
7. Website Copyright Notice
A website or blog copyright notice lets people know that the content they are reading or using is protected by copyright law, and cannot be copied or duplicated without the author’s permission. A copyright notice protects the author from individuals who copy the author’s work and claim it as their own. When a person claims a work as his or her own, despite the fact that the work belongs to another person, copyright infringement occurs. The original creator or author can sue the infringing party for monetary damages, as well as for injury to the author’s character. Just about any original work (including websites) can use a copyright notice to help protect the creator’s original work.
A copyright notice can’t stop someone from claiming another’s work as his or her own, but it does let the original creator or author sue the infringing party for damages, and increases the odds that the original creator will win in court. No legal requirements exist that require the placement of a copyright notice on your website or blog. However, if you do make use of a copyright notice, you should ensure that a link to it is available on every page of your site.
For more information and a free website copyright notice, visit:
8. Video Disclaimer
If you plan on producing and distributing a video, even a simple one, you should protect yourself. At a minimum, you should use a video disclaimer. Before distributing a video with controversial content, you should consider getting advice from an attorney. You should also post a disclaimer in a clear and conspicuous location as close as possible to the video so that the reader is likely to see it before watching the content. Ideally, you should place the disclaimer immediately before the video. Although the FTC may allow website owners or bloggers to maintain a hyperlink to some disclaimers so long as the link is labeled correctly, this is not an ideal way to display a disclaimer that will fully protect you.
9. Online Behavioral Advertising Disclosure
At this time, the easiest way to comply with the Online Behavioral Advertising (OBA) regulation appears to be posting the words “Ad Choices” in a clear and conspicuous place on every page of your website or blog that displays third-party advertising, such as Google AdSense and Yahoo Ads. Also, link the words “Ad Choices” to the OBA disclosure. The best place for the words “Ad Choices” is on your navigation bar or sidebar, so that the words appear on every page of your website or blog. If you do not display this type of advertising on your website or blog, you are not required to post the OBA disclosure.
For more information and a free OBA disclosure, visit:
10. Opinion Disclaimer
If you are expressing your opinion in any way, whether through radio, television, cable, or a website or blog, you should maintain an opinion disclaimer. Even if you do not mean to upset a person or business by what you communicate, that person or business can spin your opinion into something that you had not intended. The goal of an opinion disclaimer is to protect you or your company from legal action. Ideally, a legal disclaimer will protect your reputation as well. You should post your disclaimer in a clear and conspicuous spot as close as possible to the opinion that you are expressing. Place it immediately before your article, video, radio broadcast, or other method of communication.
11. Disclosure of Material Connection
The FTC has a long-held principle that “material connections” between endorsers and advertisers—i.e., relationships that consumers would not normally expect—must be disclosed. A post made by a blog or website owner who receives cash or payment of some sort to review a product or service is considered an endorsement. Therefore, an individual or company that makes an endorsement must disclose the material connection that it has with the seller of the service or product.
What this means is, in general, when you accept any compensation for endorsing, advertising, or recommending another company’s services or products, you are required to post a “Disclosure of Material Connection.” This includes any affiliate programs of which you are part of. You must post your disclosure in a clear and conspicuous spot, as close as possible to the opinion or endorsement that you are expressing. Ideally, you should place it immediately before your article, affiliate link, or other venue. At a minimum, you should link your disclosure to the navigation bar or sidebar so that it appears on all the pages of your website or blog.
For more information and a free Disclosure of Material Connection, visit:
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