Sleeping Nightmares– Liability Disclaimers for Websites, Blogs, and Emails: Protect Against Claims of Negligence…

Websites, blogs, and even emails… are the world’s window into your business and also the source of unlimited liability… According to Vanessa Emilio; regardless of the type of website content, and especially ecommerce; it’s highly recommended that a ‘liability disclaimer’ is included on the website, blog, and even emails…

The primary purpose of a disclaimer is to limit, or attempt to limit, liabilities, e.g.; libel, defamation, copyright infringement, breach of privacy, product issues… Your website is like a ‘contract’ between you and your visitors, where upon you become ‘contractually’ bound by what is published. Another way to look at disclaimers is as a type of ‘informed consent’ for visitors…

Hence, placement of a disclaimer prominently on a website suggests to visitors that they agree to the terms of the disclaimer and assumes all risks associated with viewing and using information on the website… However placement of a disclaimer is no guarantee from a claim of liability, but at least there is some basis for defense…

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For sure your legal risks depend on content of the website, blog… you could be sued for negligence, e.g.; if someone claimed to suffer an injury (physical or emotional) because they followed advice you provided… Or, if a visitor suffers from severe depression and in using a process published on your website and they claim that they didn’t feel any better, and in fact, they claim that their depression got worse…

According to Midge Murphy; not only are you at risk for being sued for negligence, but also for misleading information that could lead to claim of misrepresentation, potentially fraud… Claims can be made by a disgruntled visitor even if there is no merit to the claim…There is no ‘standard’ form that applies to disclaimers: A disclaimer must be tailored, i.e.;  well-crafted, well-placed to fit the specifics of a website both in terms of substance of material and intended usage…

In the article Website Disclaimers by Vanessa Emilio writes: There is much confusion about what a ‘liability disclaimer’ is and what it does… A disclaimer seems to be the ‘catch-phrase’ used for a number of different things: What is it? Generally, a disclaimer is a notice on a website that attempts to limit liability of business for losses from things, such as; content accuracy, reliance on information, defamation, copyright infringement, virus transmission…

Do they work? Disclaimers are a slightly ‘grey’ area of the law, for example; often a website might include a ‘disclaimer’ that states: This information is of a general nature only, and is not professional advice… or, We accept no liability for the accuracy of this information or any reliance you may place on it… or, something similar… But do these type statements really protect a business? The short answer is ‘yes’; more often than not…

Website disclaimers can go a long way to protecting a business from visitors who come to a website and for whatever reason they; misunderstand or misinterpret information on the website, and then try to sue the business… However a disclaimer can have limited effect on claim of liability, if in fact a website is misleading with fraudulent information. On other hand, the very use of a disclaimer is a deterrent for visitors from making claims against the business… also, disclaimers functions as warning to visitors of potential risks associated with the website…

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What do disclaimers need to include? First, you need to ensure the website has an appropriately worded ‘disclaimer’… For example; the disclaimer need not be long but it should instruct visitors to make their own independent inquiries before acting on any information… and it should state that all information is of a general nature, only and must not be taken as specific or complete advice… Hence, best defense against liability is the following:

  • Have a Disclaimer: It’s the first line of defense for any claim against the business and it may help limit liability, even if you may be held liable for statements or information on the website…
  • Ensure the Disclaimer is easily found and obvious: It’s critical to have a website disclaimer easily ‘visible’ on the website…
  • Regularly update the website: It’s important to regularly review the website information and ensure that it’s not outdated, misleading…

In the article Why Your Website or Blog Needs a Privacy Policy and Disclaimer by Michael Rogers writes: Both a comprehensive privacy policy and a liability disclaimer are a must for any business website, blog… they can provide important legal protections and give customers additional information about how you use personal information and the steps you take to keep their personal information safe…

A disclaimer generally states that you, and everyone else who posts on your website will be held harmless and cannot be held legally liable for the information posted on the site. A blog owner may use a disclaimer to protect themselves and their guest bloggers, while a business can use a disclaimer to reduce the risk of a frivolous lawsuit… Even if you do not think the website or blog needs a disclaimer, adding it will not cost much and it could provide important legal protection… Consider:

  • Why Privacy Policies are Important: Chief reason is the protection of visitors who visit the website. Web surfers have the right to know exactly how their personal information is being used, and they have come to expect that kind of disclosure from the companies they do business with… If your website or blog does not have a prominently displayed privacy policy, visitors are likely to click away before they even have a chance to explore the site and see what your firm has to offer. The lack of a privacy policy could be costing you money…
  • Disclosure of Intent: Your customers have the right to know what your intentions are and how you plan to carry them out, and that information should be clearly spelled out and prominently displayed on every website and blog you maintain… for example; if you plan to harvest email addresses and share that information with other companies, your privacy policy needs to clearly spell that out… or, if you are building a list of physical addresses for a future marketing campaign, your visitors deserve to know that… or, if you plan to track IP addresses and analyze web traffic, your privacy policy should include that information…
  • Use Privacy Policies to Your Advantage: Your privacy policy gives you a chance to brag about what you are not doing. If you do not share personal information with anyone else, be sure to let visitors know. In today’s privacy-challenged world, a policy like that could win you new friends and drive customers through your virtual doors…
  • Placement of the Disclaimer: Make the disclaimer as visible as possible to the visitors… Some bloggers get pretty creative with their disclaimers, often adding a touch of self-deprecating humor along the way… Others stick strictly to business, making their disclaimers as straightforward as possible. Either approach is fine. The most important thing is adding the disclaimer to the website…

In the article Website Disclaimers; They Do Work by Guy Burgess writes: It’s customary for websites to include a disclaimer such as: This information is of a general nature only, and is not advice… or, This information is provided ‘as is’, and we accept no liability for its accuracy… and, also there is a degree of uncertainty over some basic questions, such as: Can an incorrect disclaimer statement result in a claim of negligence against website owner(s)? or, What circumstances will a disclaimer protect website owner from liability?

Here are some important findings; 1.) statements on a website can give rise to negligence claims… 2.) website disclaimers can be effective tools for limiting or excluding liability for website mistakes… Hence, two important recommendation for website owner(s): 1.) Have a disclaimer: Ensure that the website has an appropriately worded, displayed disclaimer… 2.) Pay attention to website condition: Many websites contain incomplete or outdated information, especially when the website is supplemental to a business or organization and the primary information is available offline…

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Websites, blogs, emails… disclaimers do not guarantee that the owner(s) will escape liability… However, each jurisdiction has unique laws and the laws that apply to a specific jurisdiction may not allow courts to give any force to the language contained in a particular disclaimer… Whereas another jurisdiction may provide full enforcement of a disclaimer and not allow a person to recover damages as long as the website provides a valid disclaimer…

Also, the mere existence of a disclaimer can discourage users from filing a lawsuit, and they may believe that agreeing to use a website, which requires agreeing to the provisions of a disclaimer prevents them from taking legal action… The disclaimer, however, does not necessarily provide website owner(s) with absolute protection from lawsuits. If the terms of a disclaimer are overly broad, a court may declare it invalid and refuse to enforce its provisions…

According to Aaron D. Hall; honesty is the best policy– business should warn visitors that information on their website might include inaccuracies and out-of-date information and use of such information is at a visitor’s own risk… Also, the law is very unclear as to whether a website owner(s) can be vicariously liable for material on sites to which it’s linked…

Hence, the most prudent course is to disclose to your website visitors that you do not necessarily endorse any materials appearing on your linked websites… and visitors who wish to view any of the linked websites is at their own risk… Also, you must  consider the individual laws of each jurisdiction, e.g.; linking to websites containing gambling, pornography, lottery, and other questionable websites… may be unlawful and subject to very serious liabilities…