What Is a Disclaimer – how it protects you

Have you ever entered a site and an annoying pop-up flashes across your face saying that you have to agree to the terms of use? Or have you read fine print written at the bottom of the webpage you are on? Links at the bottom of the page are where you will most commonly find disclaimers, or more aptly website disclaimers. They are simply pages of terms that limit the liability of the website owner. Well, it limits liability but it also does more than that. In fact, every website owner is advised to have a disclaimer before entering the online world.

So what is a website disclaimer anyway? Why is it so important that it must block your screen until you’ve given up and clicked the “I Agree” button? In the UK, the website disclaimer refers to all the legal terms. In the US and Australia, the disclaimer is often only one part of the website legal terms. In either case, website disclaimers are an essential part of any website. The legal terms are usually contained on a page with information on the site’s use, limiting who can use the information found in it and attempting to shield the owner from any blame whatsoever from the use (or re-use) of such information. It protects the owner from accountabilities arising from the use and continued operation of his or her site.

To Shield and Protect

First thing you will notice about the disclaimer page is its title. Some broader disclaimers use “Terms of Use” or “Privacy Policy” but they mean the same thing – to disclaim and shield. Others directly start with a statement saying that if you are less than 18 years of age, then you must leave the site. This is a common clause on sites that are not for underage participants. It restricts who may enter and use the site. However, no one can really monitor who will enter or use the site, but the good thing about disclaimers is that it can remove the blame from the owner if the transaction goes bad later on. If for example, a child accesses a website advertising alcohol to enter a competition or play an online game and is later found drunk in public. The parents aren’t going to have much success chasing the company running the website because they made an effort to put restrictions in place to stop children accessing the website. Their disclaimer showed that they did not intend to make the content available to children.

Often a disclaimer will say that the site will not be responsible for any defamatory or libelous statements posted by the users and that the statements are purely self expression. Had the owner not put up the disclaimer, they could open themselves up to a swarm of lawsuits from people who had been maligned in the online discussions.

Aside from limiting the users, disclaimers can also say a thing or two about the quality of the information contained in the site. This is often used by blog owners, online forum and review websites; even professional advisors. Since these site developers or owners often have no control over how their information is used, disclaimers are highly advisable.  Here the website owner wants to inform the users that the information may not be perfect, or that the information by way of example and will not be as good as specific professional advice. We have seen this many times in sites which give free general legal or medical advice to any question posted.

Disclaimers give the owners some confidence (or probably a good night’s sleep). It is a take-the-information-at-your-own-risk message. It tells you that the site is governed by this and this law. And if you decide to sue the management, you will have to do it before a proper forum, which is most likely in the country where the owner lives. In fact, some sites even automatically subject you to agree to its terms by mere entry. The fine print does it. Even when you didn’t care to scroll down and read the terms, you are expected to be bound by it because you are in the website.

Protecting Intellectual Property

Establishing ownership is probably the best purpose for online disclaimers. By putting up a page, the owners can claim copyright and protect the intellectual property they have in anything written on the site. Yes anything. Even the aesthetics and layout can be rightfully claimed by the owner against the whole universe if the owner created it.  We commonly see sites prohibiting us from reproducing data found in the site or limiting use for personal activity.

BUT there is a disclaimer to the disclaimer. Although they seem to shield the website owner from all sorts of liability, there are some things which are beyond the reach of these online disclaimers. Fraud is one. When the information contains fraudulent matters, the owner is not always shielded. They must answer and explain.

So where to get one?

A lot of websites today offer free disclaimer templates which you can use and customize to suit your needs. That is, if you know what you are doing. However, templates offered are often full of legalese the owner doesn’t even understand. It could also be too generic as to offer no protection at all.

The beauty of site disclaimers lies within its clauses. A good disclaimer is one which touches on every possible aspect of the sites use without going over the top. Making a complete and thorough but simple disclaimer takes skill and technique. A legal practitioner, one experienced in website law, should draft these documents for the owner. Why is that? It is because disclaimers should match the information or service your website offers. Different websites require different protection (and often different levels of protection). Product guarantee, for example may not be as useful to music video sites as much as to buy-and-sell sites. If you are planning to get one for yourself, you should be able to discuss in detail with your lawyer how the website operates, what kind of users it caters for, and the possible complication you may face as a result of the information contained in it. These are important so that you will know what kind of protection you need. A carefully planned disclaimer is a must in this day and age where information could be easily used and re-used to your disadvantage.

So the next time you come across one of these pop ups, take time to scroll down and read through the disclaimer clauses (even though it seems gibberish). Jot down which you think your website needs and have it noted by your lawyer. It is of course you who knows more about your site than anybody else.

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