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We'll discuss some of the most common and important disclaimers and what purposes they serve while showing examples from real businesses that use these disclaimers.
Disclaimers have a long legal history. They generally have two main purposes:
A warning sign is an example of a disclaimer that everyone would be familiar with.
"No trespassing" signs alert passing individuals that they are near a private land boundary and also excuse the landowner of some liability if people visit uninvited and get injured.
Sometimes the warning and limitation of liability are based on statutory law. For example, the state of Washington in the United States has a law that prevents people injured at equestrian facilities from pursuing legal damages.
Any business that boards, trains or allows the riding of horses has to have a specific sign to enjoy this protection from liability. This sign acts as a disclaimer much like a "No trespassing" sign in that it informs and specifies limits on facility responsibilities:
Another area where you would find disclaimers is books.
For example, if a book addresses alternative medicine or other treatments not officially approved by regulatory agencies, she recommends this disclaimer or something like it:
Storey Publishing places a general disclaimer in most of its works. A book by Allan Hamilton, M.D. titled Zen Mind, Zen Horse: The Science and Spirituality of Working with Horses, contains this disclaimer because Dr. Hamilton is a neurosurgeon and the book offers horse training advice along with explanations of equine neurology:
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Placing a disclaimer on websites and apps has the same purpose as those employed before the internet. While the warning element remains, the primary concern is about limiting legal liability and responsibility.
A common area where disclaimers arise is on websites offering alternative health or medical advice.
iHerb sells vitamin and herbal supplements online. It's also very careful on how it represents its information and adds this disclaimer:
The detail in this medical disclaimer from iHerb is understandable. Supplement companies can make big claims and yet, these have to be discerned thoroughly. iHerb makes it clear that while the products are available for purchase, that does not mean they will always yield the intended benefits.
Intertek, a consulting company, has a legal disclaimer page that explains that the company provides the best information possible but will not be held liable if the user does not enjoy the intended results.
Intertek's disclaimer page is titled "Legal Disclaimer" but is really a catch-all of liability:
These are examples of disclaimers that are presented as separate documents. Sometimes, however, disclaimers are included in the Terms and Conditions agreements of a website or mobile app.
In some cases, this is true. Both agreements will likely contain disclaimer-type language that can act as protection against liability.
TermsFeed is the world's leading generator of legal agreements for websites and apps.
TermsFeed Generators make it easy for you to generate the necessary legal agreements for your websites and apps:
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However, there are differences which make disclaimers essential.
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If there's a specific risk involved with the use or misuse of your service, a disclaimer addresses that much better and much more clearly.
Even then, there are businesses that dabble in higher risk transactions but do not have a disclaimer. Instead, they opt to include disclaimers in other legal agreements.
One example is the general disclaimer of warranties, seen here in Amazon's Conditions of Use page. Notice the all-caps easy-to read font and clear language rejecting warranties and limiting liability:
Likely due to the fact that it only trades in information, WebMD also keeps its disclaimer in its Terms and Conditions page. However, it's very conspicuous and located in the introductory content of that document:
Disclaimers work the same way as your other legal agreements.
They give users a heads-up on what to expect and make the limitations of your content, product or services known.
If your disclaimer is easy to find or part of an accessible FAQ, it is likely for a court to agree that the liability is on your user rather than your company.
Developers, bloggers, and writers use them because they do more to hurt than help. If there's a high risk of misuse, err on the side of providing disclaimers. However, less risky industries can likely proceed fine without them.
There are particular situations that require disclaimers more than others.
If your business would benefit from any of the following disclaimer types, consider posting a disclaimer in a conspicuous place on your website or through your mobile app to keep your users informed and yourself legally protected.
The examples from WebMD and iHerb shown above emphasize that this is an important area for having disclaimers.
For example, people will often Google their symptoms before making a doctor's appointment, making disclaimers regarding the effectiveness of online medical information or supplements very important.
The last thing your company needs is to face a lawsuit due to misuse of your product or information that leads to someone becoming very ill or even dying.
Medical disclaimers are often very detailed, like with iHerb or WebMD.
However, if you merely provide a platform for doctors and other medical professionals to share information with the public, a disclaimer will be more simple.
People rely on professional advice and often do not make the distinction between hiring a professional and reading an expert's blog.
Attorneys especially face this ordeal.
Potential clients may interpret an attorney's blog as legal advice and pursue remedies if that fails to work for them.
Amy Porterfield helps entrepreneurs, educators and online experts build better online businesses, which clearly means she's going to be giving advice and recommendations. She has a blog and a podcast where she shares her thoughts, tips and informative content. Amongst her many disclaimers, she includes a "No Professional-Client Relationship" disclaimer:
The disclaimer notes that simply using any of the resources made available does not create a professional relationship between the parties. This is important because certain rights come with such relationships. If Amy had a legal obligation as a professional in a contractual relationship to everyone who read a blog post of hers, you could see how that would get out of control, and fast.
Here's an example of a very standard, typical legal advice disclaimer:
Note how it begins by stating that the website author is not a lawyer and should not be taken as offering legal advice. If you are a lawyer you can still include this clause (and very much should!), but can just leave out the part stating you aren't a lawyer. The rest of this clause will apply regardless.
If you provide a professional service consider a disclaimer if:
This allows the reader to have a clear understanding of your relationship to them and puts them on notice that your tips or advice should be verified by another professional before readers act on them. Otherwise, they assume the risk.
If you run a blog where you share your thoughts, opinions or personal content, you should consider a general blog disclaimer that makes note that your content is just your opinion and that you can't be held liable for anyone relying on it for more than just that. Here's a simple blog disclaimer from Guava Rose that accomplishes this:
The disclaimer also notes that the content isn't intended to offend or insult anyone.
If your blog allows others to post content, such as with blog post commenting, or if you provide links to third-party resources, consider a content disclaimer. This type of disclaimer will note that you aren't responsible or liable for anything anyone else posts, shares or transmits on your site, or anything on any other sites that you link to. It's a good catch-all way of disclaiming content created by anyone else, even if it's on your site or shared by you via a third-party link.
Here's an example of a content disclaimer from fitness and wellness coach, Coach Erik:
Ayush Herbs has a similar disclaimer but titles it an Objectionable Content disclaimer:
Ayush has an additional content disclaimer that addresses accuracy of information, stating that the company can't be held responsible for things like incomplete or inaccurate information, typos or omissions. While the other content disclaimers address subjective content issues, this type of clause deals more with objective things, like unintentional mistakes or errors:
Affiliate relationships enter the sticky territory, especially if you are paid for reviewing products.
In 2009, the Federal Trade Commission (FTC) in the U.S. passed rules requiring the disclosure payments received for endorsing products. That requires disclaimers if you have a commercial relationship with another entity where you advance their product or service. These types of disclaimers are less about avoiding liability and more about informing users.
Sewing.org offers a blog with craft tips and reviews products. It offers this disclaimer page regarding reviewed products and specifically mentions the FTC in the disclaimer:
Here's a Reviews disclaimer from Amy Porterfield. The disclaimer notes that sometimes incentives might be provided to the site in exchange for reviews. Amy makes sure to let readers know that all reviews are always good-faith, honest opinions regardless of whether a discount or incentive was offered in exchange for the review:
It's not only fair, but it's legally required that you inform your readers about any commissions, compensation or payments you receive by reviewing or endorsing products.
If your site deals with information that's intended to help others boost income, you should have an earnings disclaimer. This disclaimer will be relevant for websites that offer things such as stock market and investing advice, professional life-coaching, career advice, gambling tips and other content that someone can reasonably rely on to boost income or earnings.
Include a disclaimer that states that past successes or successes of others are not a guarantee that everyone will have such successes. This is a type of "results may vary" disclaimer. This will limit your liability in case someone relies on your advice and doesn't have an increase in earnings.
Here's an example from Amy Porterfield:
Similarly to an earnings disclaimer but more general in nature is the "results not typical" disclaimer. This disclaimer simply states that whatever results are discussed or disclosed on a website are not typical. So, users should not necessarily expect to have the same or even similar results.
This is very common with diet and weightloss companies. Here's an example from the Atkins diet website:
Disclaimers offer good legal protection when you identify specific legal risks.
Medical, professional, and affiliate circumstances definitely require a disclaimer. If your product, service or content falls under a different category, a disclaimer will merely act as reassurance.
Identify your risks and then decide if you require this extra content in your legal agreements or on your website and/or through your mobile app.
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You can also download this Disclaimer Template as a Google Document.
This template available for download, for free, includes these sections:
This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.
21 December 2020