29 January 2020
A custom mobile app doesn't come cheap. As of early 2018, the average app costs $18,000 to $28,000 to develop. If you decide to add a full-time professional US-based app developer to your team, that will cost you on average a little over $100,000 per year.
However, considering that nearly 200 billion apps were downloaded in 2017 - and even that huge number is expected to skyrocket over the next couple of years - a great app can easily pay for itself and then some.
If you're in the app game, the last thing you want is for your app to inadvertently get you into legal trouble. That's why it's so important to create the right mobile app disclaimer.
It's a formal statement that lets consumers know that the seller/owner is not subject to any kind of legal liability in certain situations.
For example, if you log onto the app created by The Medical College of Wisconsin, you'll see this in the Terms and Privacy section:
Basically, this disclaimer is letting you know that the information provided on the app isn't intended to replace a trip to your doctor. It's not meant to be part of the "cure, mitigation, treatment, or prevention" of any disease. As a result, if you rely solely on this app's information to make important medical decisions, the Medical College of Wisconsin isn't responsible if something bad happens to you.
Disclaimers aren't restricted to the mobile app industry, though. You'll see them everywhere from playground equipment, to online stores, to car warranties.
This disclaimer is pretty straightforward. The car is being sold as is, so if anything happens to it - like if it fails inspection, has a damaged engine, or even has a bent frame - you're on your own if you buy it.
The seller is disclaiming all legal liability for anything that may be wrong with it. If you signed this contract and you try to take the seller to court, you'll very likely lose.
Typically you'll find a disclaimer as part of the app's Terms and Conditions agreement. Or, it could be listed in the app's Mobile User Agreement. No matter where you decide to put yours, the exact wording will depend on what your mobile app does and what kind of information it collects.
Here's an example from easyJet - an app where you can book flights, hotel rooms, rental cars, and even travel insurance. Because any of those bookings require sensitive information - like your credit card information - they've included a very specific disclaimer:
easyJet has made it clear that you're responsible for keeping your phone secure. If you decide to jailbreak your phone it could remove some of the phone's security features, which means hackers could gain access to the information you've stored on the easyJet app. If that happens, easyJet isn't liable for it.
If you download Showtime Networks' app to your phone or tablet, it comes with a very clear disclaimer in its Mobile User Agreement, which reads in part:
In layman's terms, this disclaimer says that Showtime doesn't guarantee that its app will always run properly and "FREE OF ERRORS OR OMISSIONS." If something does go wrong with the app's transmission, Showtime doesn't guarantee that "DEFECTS WILL BE CORRECTED."
Also, if you get a virus from downloading the Showtime app, they aren't liable for the damage. As a result, by downloading this app, you are doing so "AS IS, AS AVAILABLE, AND WITH ALL FAULTS."
In other words, if you can't watch your favorite show one night or if the video keeps cutting out, it's not Showtime's problem and you can't hold them liable for anything.
The FTC has disclaimer regulations for mobile apps. For example, if you're developing a health-related app, the FTC has created a special interactive tool to help you figure out which federal laws and regulations apply to it.
Back in 2014, the Food and Drug Administration (FDA) started cracking down on mobile health apps that it deemed to be questionable. They started with apps that claim to provide vital signs - like blood pressure and the level of oxygen in your blood - because the disclaimers on these apps didn't address the fact that their software has not been proven to be accurate.
It's not just medical apps, though.
If your mobile app provides any kind of consumer report - like for people who are applying for a job, trying to rent an apartment, or applying for credit - you have to follow the regulations in the Fair Credit Reporting Act (FCRA).
Even if you write a disclaimer saying that you can't guarantee the accuracy of the information or that you're not responsible for what happens after you provide the information, the FTC can come after you for violating the FCRA.
And, when it comes to marketing your mobile app, the FTC has some tips for you.
The FTC has created an entire business guide that contains best practices for mobile app marketing:
Because the FTC was created to protect America's consumers from deceptive sales practices, it places a big emphasis on truthful advertising.
Part of adhering to the FTC's regulations is creating disclaimers that provide information "clearly and conspicuously." While the FTC does not have a one-size-fits all disclaimer template that you have to follow, it does make it clear that the Commission has taken action against app developers who put their disclaimers in a long licensing agreement or buried them behind a vague hyperlink.
As the FTC puts it, you're not allowed to bury your disclaimers in "dense blocks of legal mumbo jumbo."
One final point about the FTC - tiny businesses aren't exempt. Whether you're just starting out, are running a one-man shop, or haven't made any money from your app yet, you still need to follow all of the FTC's regulations.
Federal regulations aren't the only thing you have to worry about, though.
If your mobile app contains affiliate links, your entire affiliate account is at risk if you don't have the proper disclaimers.
Amazon's affiliate program - Amazon Associates - has nearly one million affiliates, making it one of the biggest affiliate programs in the world. If you want to make money as an Amazon Affiliate, you have to use a carefully crafted disclaimer on your website, on your social media profiles, and on your mobile app.
Here's what Amazon says in its Associates Program Operating Agreement:
If you don't include this language, you'll be banned from the Amazon Associates program.
Start by assessing your app. What does it do? Who is it geared towards? What kind of legal liability are you trying to avoid?
The most common mobile app disclaimers fall into one of these categories:
The Information Only Disclaimer
This type of disclaimer says that the mobile app's content is for informational purposes only.
Everything on Autorox's mobile app - its data, information, text, graphics, and links - are only meant to be used for informational purposes.
They make it very clear by saying, "We do not take responsibility for decisions taken by the reader based solely on the information provided in this app."
In other words, don't make any major life decisions based on Autorox's information alone.
If you have any kind of medical-related app, this is a disclaimer that you'll want to include.
Take a look at how Pharma Marketing Blog disclaimed legal liability on its app:
If your medical-related content was not written by a doctor, that fact should also be included in your disclaimer. That way, your users will know exactly who they're dealing with.
The No Guarantee of Accuracy Disclaimer
Depending on what industry you're in, new developments may take place so rapidly that you can't possibly update your app with all of them on a second-by-second basis. If that sounds like a familiar problem, you need a disclaimer that explains the accuracy of your information.
Take a look at the disclaimer that EWG, a non-profit group that studies environmental health, uses:
Because changes can happen so quickly, EWG makes it clear that the information on their website and app reflects their "research at the time of publication." So, if you read something a year after it was published, you can't blame EWG for it no longer being accurate.
The Third Party Disclaimer
If your app links to any other apps or websites, you'll need to have a third party disclaimer. That way, if someone follows one of your links and ends up getting inaccurate information, content that they deem offensive, or even hacked, you won't be legally liable for it.
Here's how UCHealth has structured its third party disclaimer:
The explanation is very clear - "UCHealth has no control over the content of these third party websites and mobile applications." Then, for even more legal protection, it's pointed out that just because a link is provided to a third party, it doesn't necessarily mean that UCHealth endorses the linked content or its publisher.
If you do decide to check out one of these third parties, "you do so entirely at your own risk".
The Use at Your Own Risk Disclaimer
Use at your own risk disclaimers pop up all over the place, and it's a good idea to include one on your mobile app. That way, your users know exactly what they're getting into.
Here's an example from Future PLC:
There is some legal jargon in this disclaimer, but the overall premise is clear - "THE APP IS PROVIDED ON AN 'AS IS' BASIS."
As a result, Future PLC isn't taking legal responsibility for "ANY TECHNICAL FAILURE OF THE INTERNET AND/OR THE APP; OR ANY DAMAGE OR INJURY TO USERS OR THEIR EQUIPMENT."
In other words, if your internet goes down and you can't access the app, or if you and/or your mobile device somehow get damaged while using this app, Future PLC has no legal liability for it.
Remember, the FTC requires that your disclaimer be clear and conspicuous.
There are a few different ways to do that:
Link your Terms and Conditions to your app's signup form
With this setup, users must agree with your Terms and Conditions - including any disclaimers that you've written in there - before using your app.
Create a pop-up
Some people think pop-ups are annoying, but one thing's for sure - you can't help but notice them. As a result, they're a good way to get users to see your mobile app disclaimers.
Here's an example of how a pop-up disclaimer can look on an app.
If you have both an app and a website, you can create a disclaimer page on your site and link to it from your app. That way, you don't have to worry about including it in the app's infrastructure.
You can include your website's disclaimer page link within your app's Legal, About, Settings menu or elsewhere where people would know to look.
Mobile apps are a great way to increase your brand's awareness, keep up with current technology and make more money. Just make sure you have solid disclaimers in place. Otherwise, your app could end up doing more harm than good.
Protect your own legal liability and manage user expectations with appropriate disclaimers for your mobile app.