Should you have a Disclaimer on your website, and if so how should you go about putting it on there to make it enforceable?
A Disclaimer is used to “disclaim liability” for something. If you read my previous post, the overview of the “fine print” on your website, you encountered a Disclaimer at the end of the post. It says that you should not take my words as legal advice, and you are not my client merely because you read my post.
You might want to have a Disclaimer if you think ANYONE might be harmed by reading and acting on the content of your website, even if the way they might act would be a totally inappropriate use of your website or its content. As I mentioned in my previous post, a website Disclaimer functions similar to a warning label on a product that might POSSIBLY be used in SOME way that COULD harm the most ignorant person who uses the product in the MOST INAPPROPRIATE way. People who definitely want a Disclaimer on their website include professionals who post information that, if acted upon incorrectly, could lead to some direct harm to a reader. This includes of course lawyers who write about legal issues, medical doctors who write about health issues, architects who write about construction issues, roofers who write about roofing issues…the list goes on and on.
For example, what if you are an interior designer who suggests the use of specific colors? Could someone who took your advice sue you because of headaches, lost love interests, ridicule from neighbors, inability to clean the painted surfaces, or any other reason that they think might be linked to your “weird color recommendations?” Seems far-fetched, but in a litigious society where the courts are used to redirect responsibility for all of our bad decisions onto someone else, any claim of liability is possible. So it’s better to put your readers on notice that your advice should be taken without any warranty of the effectiveness of your advice.
So put the warning label on your product literature: Draft a Disclaimer and post it. Instead of thinking of the Disclaimer as nuisance nonsense, you might even consider that a Disclaimer could make you look more professional, it’s a kind of marketing statement that says, “What I do is so important that I need to warn you about its misuse.”
In my previous post I said that disclaimers are a type of mini-contract. If that is so, under what conditions will your Disclaimer be enforceable against someone who tries to sue you despite the presence of your Disclaimer?
The answer requires discussion of something called “browsewrap” versus “clickwrap” agreements. That discussion is important enough to put in a post of its own, so I am saving it for the next issue.