One of the great things about living in the internet age is the ease with which anyone can start their own website. You don’t need to have the backing of a large corporate to get up and running on the web — any individual with internet access can have a site live online in just minutes.
For those with an entrepreneurial spirit, this is a great thing indeed. If you would like to start your own business, a website provides you with access to millions of potential customers for a very small investment.
To have your own site which offers information, goods, or services to the public, you only need to invest a bit of your time along with a small amount of money for hosting and a domain name.
While technology has made it easier than ever before to get into business for yourself, there are some issues that you need to watch out for if you wish to prosper in the long run. As is the case with any business, online or offline, there are potential legal problems that need to be avoided.
When someone uses your website, you are offering them information of some kind. If that information should prove to be inaccurate or otherwise damaging in some way, you could find yourself facing a lawsuit.
It should go without saying that all business owners would like to avoid any potential legal issues if at all possible.
It is with that background that we are going to move into the topic of disclaimers. If you own and operate a blog or any other website, you should strongly consider adding a disclaimer that can work to potentially shield you from some form of legal liability.
By the end of this article, we hope that you will clearly understand the vital need for an accurate, appropriate disclaimer on your website.
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What is a Website Disclaimer?
A disclaimer is a notice which is placed on your website in an effort to limit your liability for the outcome of the use of your site. Even if you haven’t thought much about them previously, you have certainly seen disclaimers all over the web. Nearly every website has one in place, and you should as well.
While a disclaimer certainly can’t rule out the possibility of legal action taking place at some point in the future, it can go a long way toward protecting your best interests.
So what kinds of website elements can be covered by a disclaimer? The content on your website is usually the first place to start. Even if you make every effort to confirm the accuracy of the information you have placed on your site, it is always possible that some of the information on your pages may be inaccurate.
If a website user can prove that this incorrect information has harmed them in some way, you could potentially be found liable in court. However, if you had an appropriate disclaimer in place to cover the content of your site, you may be able to successfully argue that you are not liable.
Beyond content, other pieces of your site that could be covered by a disclaimer include potential copyright issues, the transmission of viruses, and more. Technically, just about anything you place on your site can be addressed through the use of a disclaimer.
As you prepare to take your site live onto the web, it is wise to think through everything you are publishing and consider placing a disclaimer on anything that you feel may open you up to a lawsuit in the future.
It does need to be highlighted that the use of a disclaimer does not in any way eliminate the possibility of a lawsuit. Anyone can file a lawsuit at any time for any reason, whether you have a disclaimer in place or not.
It will be up to the courts to determine the validity of a lawsuit that has been levied against you, which is where a quality disclaimer could come into the picture. If a court determines that your disclaimers do, in fact, cover the items in question in the lawsuit, you may be protected from liability.
Disclaimer vs Terms and Conditions, What’s the Difference?
It is easy to assume that disclaimer and website terms and conditions are the same things. They are not the same thing, however, and it is important to understand the difference as you are assembling your site.
Rather than attempting to reduce liability through the use of a disclaimer, someone using terms and conditions on a website is laying out a specific framework for rules related to using that site.
For example, some of the items which could be included on a terms and conditions page include the following:
- A structure of the legal relationship between the website owner and site users
- Imposing limitations on the use of the website
- Establishing rules regarding who can legally use the site
- Granting permission to use certain materials which are found on the site
While it is true that there can be some overlap between terms and conditions and disclaimers, they should not be thought of as the same thing.
A disclaimer may be included in the content of a terms and conditions page; however, these are separate issues that should be handled separately as you assemble the legal section of your website.
Why do You Need a Disclaimer?
The content that should be included in a disclaimer is going to depend greatly on the type of website you own. It is impossible to say exactly what should be included in each and every website disclaimer because sites come in all different shapes and sizes.
The best disclaimer is the one that fits the needs of your business perfectly.
With that said, there are a few things which you should consider including in your disclaimer, provided that they match up with the content and purpose of your site.
It protects your rights
A disclaimer protects your rights over your intellectual property against infringement by other people. Assuming that your work is literary or artistic in nature, a disclaimer can contain a claim of ownership over the copyright of your content.
A disclaimer may dissuade others from using your content without your permission.
Other forms of intellectual property will be fully protected only upon registration as per law. If your intellectual property consists of a technical solution to a problem, you should file for a patent.
On the other hand, if you want to claim ownership over words, phrases, symbols, and designs that identify your goods or services, it is better to register a trademark.
It limits your liabilities
Since it serves as both a warning and a way to mitigate risks, a disclaimer protects you from liability. Anyone who reads your disclaimer should understand the risks involved in using your website or acting upon the information in it.
It clarifies your obligations to your readers.
A disclaimer notifies your readers of your qualifications or background, as well as delimits the scope of your obligations to them. This is especially useful when you are advising in an area that is not necessarily within your expertise.
It disclaims third party liability
There may be instances when third parties can interact with your customers or clients through your website or blog, thus exposing you to liability from their actions or statements.
Your website or social media account, for instance, may allow comments or advertisements from other parties. In these cases, a disclaimer will protect you from incurring liability from the actions of those who comment or advertise on your website or page.
It protects the organization or company to which you belong
If you belong to an organization or company, your website or blog can be easily linked to them, which may be damaging to both you and the organization or company. In this case, a disclaimer can clarify that your opinions are solely your own, and it does not reflect the views of those of the organization or company.
It is vital for you to note that a disclaimer will not completely protect you from liability. For example, you may still be held liable if a person is injured because of your negligence or if you failed to do something required by law.
Nonetheless, writing and putting a disclaimer on your website is still worthwhile to best protect you and your business.
What to Include in a Disclaimer?
The content that should be included in a disclaimer is going to depend greatly on the type of website you own. It is impossible to say exactly what should be included in each and every website disclaimer because sites come in all different shapes and sizes.
The best disclaimer is the one that fits the needs of your business perfectly.
With that said, there are a few things which you should consider including in your disclaimer, provided that they match up with the content and purpose of your site.
Identify the rights you want to protect
As mentioned earlier, a disclaimer helps protect your ownership over your intellectual property. A disclaimer that states your ownership over your work dissuades theft of such work, and at the same time, protects you from accusations that such work was copied or stolen.
Identify areas where you might be subject to liability
You are exposing yourself to legal liability, whether it is through selling goods or services or publishing information on a website. For instance, someone could get hurt when using your product, or someone could misconstrue information posted on your website.
When making a disclaimer, try to think of the possible scenarios that could expose you to legal liability. A disclaimer should contain all areas of potential risk that you can identify.
Here are some points that your disclaimer may contain:
Inform your readers that your content is merely an opinion
Over the past few years, there has been a steady growth in litigation over online content, and most of these suits are grounded on defamation. Protect yourself from criminal charges by making the readers of your website or blog aware that its content is merely an opinion and not fact.
Warn your readers against potential mistakes on your website
You should also consider including a disclaimer over the accuracy of the information on your website. Otherwise, errors in the information you publish, even if unintentional, could expose yourself to legal liability.
Inform your readers that your content is not professional advice
When publishing information, professionals usually add a disclaimer to say that their content is only informational and cannot be construed as professional advice. After all, this kind of advice can be given only after a personal consultation with a professional.
This means that readers who act on the information on the website do so at their own risk.
Disclaim third-party actions or content
If your business entails dealing with third parties, aside from your customers or clients, you may want to consider limiting your liability for the actions or errors of such third parties.
When you are using websites or social media platforms, this form of disclaimer is also useful. Website or social media accounts may have features that enable comments, user submissions, advertisements, or any form of third-party content.
Where to Display a Disclaimer?
Again, this depends on the content of your website or blog. These are some of the ways that websites and blogs display their disclaimers:
1. Browse-wrap method
Browse-wrap is a small hyperlink at the bottom of the web page that redirects the user to another page with your disclaimer. Most websites and applications use a browse-wrap method to display their disclaimer, terms and conditions and other policies.
2. Click-wrap method
As opposed to the browse-wrap method, the click-wrap method is characterized by a checkbox. Your website will require your reader to check or toggle an “I agree” checkbox to proceed with your website. Your website can also provide an increased notice of the reader’s obligations by adding the phrase “By clicking the following button, you agree to such and such“
3. Making it a part of terms and conditions
Before proceeding with your website, your clients or customers have to accept your terms and conditions. By making your disclaimer already part of it, you are ensuring that the said disclaimer is part of an enforceable contract.
Regardless of where you decide to place your disclaimer, take note of the case of Specht vs. Netscape. In this case, the court said:
Reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility.
In short, such notice must be easily seen by your readers.
Although the crux of Specht vs. Netscape was due to the terms and conditions of the product, the same principles should be applied to disclaimers to give it legal effect.
The bottom line is: treat a disclaimer as you would a contract. This ensures that your disclaimer will be respected by the court in case of a lawsuit.
How to Enforce a Disclaimer?
Generally speaking, a disclaimer is not something that you will need to actively enforce. Rather, it is in place to potentially protect you in case legal action is taken against your website.
For instance, if you are sued because the information on your site was inaccurate and caused someone harm as a result, you may be able to point to the disclaimer in court as a way of protecting yourself against liability.
This argument may or may not be compelling to the judge, but this is how you would use a disclaimer in the “real world”.
You can make your case stronger by making sure of two things: the terms of your disclaimer are fair and your customers or clients can review them.
Make sure that your terms are fair
To make a disclaimer legally binding, you must ensure that its terms are fair to your clients or customers. As mentioned earlier, there are some things that a disclaimer cannot shield you from.
For one, you cannot disclaim liability for negligence or include terms that are contrary to law. You must also make sure that there are no vague terms that might mislead your clients or customers.
Make your customers aware of your disclaimer
Your disclaimer should be placed where it is easily seen by your readers. They shouldn’t have to struggle trying to find it.
Can You Copy a Disclaimer From Another Website?
The answer to this question is simple — no. You should not attempt to copy a disclaimer from another site because that site is certain to contain content that is different from your own.
You may wish to look at some of the disclaimers on other sites for a reference on this topic, but you are going to need to create your own custom disclaimer.
Can You Use a Disclaimer Template?
Again here, the answer is no. You may wish to use a generic template to get started on the process of writing your disclaimer, but simply “filling in the blanks” on a template is not going to get the job done.
The person who created the template cannot possibly know all the ins and outs of your website, so that template may fall short in important areas.
As a better alternative, consider creating a disclaimer with the help of our easy to use website disclaimer generator. It will use your own responses to create a custom disclaimer tailored specifically to your needs which can be used on your website right away.
