A website disclaimer relates to your specific website content. These disclaimers are not generally required under any specific law. But, using the appropriate website disclaimer on your website is necessary to avoid legal liability in many instances. Website disclaimers are essentially used to: i) walk away from some responsibility or potential liability; or ii) to limit or to disclaim some association or affiliation with something or someone.

By including specific language on a website, website visitors may be restricted on what claims they can bring against the site operators. As a practical matter, a website disclaimer is often used by the courts to help determine the intent of your business practices and extent of your liability for your website content. In this sense, you should think of them as legally required. In order to draft an effective disclaimer, you need to determine what legal risks you or your business faces first and foremost. This depends on the website content and site activities.

Does your website provide advice and/or instructional information? This could expose your website to potential claims for reliance upon such information or advice. For example, you could be sued for negligence if someone suffers any damages based upon the advice or information contained on your medical information website.

One of the most important basic disclaimers every website offering information or advice should include relates to the accuracy or reliability of your website content. A basic website use disclaimer should also provide that your website makes no representation regarding the reliability of the site and that the visitors are accepting all risks by using your website.

Disclaiming that no attorney-client relationship exists by viewing the content of my blog is an example of a disclaimer specific to my website activity. Also, stating that all information is general in nature only and should not be taken as legal advice is another example of a specific disclaimer.

 

But, based upon how you use any given website disclaimer, it may be ineffective!

The value of any website disclaimer depends upon how skillfully they have been drafted and whether proper notice of the disclaimer is provided to website visitors. There is no “standard” language that applies to disclaimers. Each disclaimer you use should be drafted to include precise language that covers your website activities and how any content is intended to be used on your website. This means you should avoid generic language or language borrowed from another website.

 

Website Disclaimer Placement is Critical

The courts will evaluate your website content and how and where you identify the website disclaimer in relation to that content. This means placement of a website disclaimer is just as important as the language of the disclaimer itself. Your visitors need to have proper notice that the disclaimer exists. An improperly placed website disclaimer is worthless no matter how well it is drafted. All disclaimers should be positioned in connection with the content being disclaimed so it stands out from the rest of the content and is in an obvious location. No single body of law or regulatory agency governs the use or placement of website disclaimers. They are unlike disclosures relating to advertisements and other website content falling under FTC guidelines. No matter what area of law the disclaimer may relate to, however, the courts will always look at the intent behind the placement of any website disclaimer.

 

Effectiveness Spectrum?

Since there really are no hard and rigid rules, it might be appropriate to think of website disclaimer placement in terms of a liability spectrum. There are the extremes at either end and there are practices that fall somewhere in the middle. The most conservative route is to have all website traffic flow through to a separate webpage, or splash page, containing your disclaimers. Each visitor will have viewed or used the information on your site with full knowledge of the disclaimer before they elect to move forward. You may then be able to argue that the visitor was in full agreement to the disclaimer terms. From a business perspective, this route is not very attractive. Conversion rates can hinge on a single factor, such the increased time it takes for your customers to arrive at what they are looking for.

The most liberal route is to hide any relevant disclaimers by placing them in the website terms of use or on a separate page and using some inconspicuous link buried in your website footer. This can be easily overlooked by your visitors and they would likely have to stumble upon the links to find your disclaimers. This weakens the argument that your business intended to fully disclose or disclaim whatever it is the subject of the website disclaimer. It may defeat the purpose of using a disclaimer altogether in the eyes of the courts. Visitors may not notice the link and never read the disclaimer! Visitors must have proper notice of the existence of any website disclaimers.

The “middle ground” is to somehow identify the existence of any disclaimers to your users prominently on the webpage. Placing a prominent disclaimer link on some immediately visible portion of the website (where your visitors do not have to scroll down to find it) is an example of this route. You could then include the disclaimers on a separate page. Placing a website disclaimer directly on the visible portion of each web page containing the relevant content is probably another example. I say probably because this really is an arbitrary standard I am using. This method applies more to specific websites activities and not to general disclaimers such as content accuracy or liability disclaimers. Finally, you could also include a general website disclaimer in your website terms of use itself. If notice of the website terms is improperly provided, the website disclaimer will be ineffective, however.

The bottom line is your visitors must receive proper notice of the existence of a website disclaimer no matter how you decide to use them!

 

A Website Disclaimer Is Not A Complete Legal Shield By Itself

Finally, remember that there is absolutely no guarantee any single website disclaimer will shield you or your business from legal liability. No matter how careful you may be, there is no guarantee you or your business will avoid liability by simply having the right disclaimer on your website. This holds true even if you have hired an e-commerce attorney to draft each of your website disclaimers. The facts and circumstances specific to the situation or alleged claim will be evaluated in each determination of liability by a court of law. But using an effective website disclaimer can certainly be a deciding factor!