So you’ve decided to post a disclaimer on your website. Is it worth the time and money it took you to have it written and post it, by which I mean, is your disclaimer even enforceable?”
In my previous post, I discussed why you would want a disclaimer on your website. Basically is a C-Y-A feature that you probably have come to expect from the advice of attorneys. But assuming you buy into the need for a disclaimer, where are you planning to put it?
Most businesses don’t want to draw attention to their disclaimers, which after all are kind of negative in that they disclaim something (like a warranty) that users might have really wanted—or so it is thought. So the tendency among website developers and owners is to find a place to bury the disclaimer, hope nobody reads it, but then have it available as evidence in case someone sues because that someone misused the information on website.
If you look at the bottom of some website landing pages, you might see a fine print link called “Disclaimer” or “Legal” or the like. Readers would have to be looking for that and click the link that will take them to another page. If there is no requirement for readers to click over to that other page, this type of disclaimer is called “browsewrap.” The website is metaphorically wrapped in the conditions of use that are put on a page that must be “browsed.” (Remember shrinkwrap, the plastic you had to break through in order to use a product, and the idea that once you broke that seal you own it? Well the term “browsewrap” is thought to be a legal extension of that concept.)
But here’s the problem with this approach: If the click through to your disclaimer is not required, most readers, who are always in a hurry, will simply skip the link and proceed to the parts of the website that answers their burning questions.
So that brings up the question: Can a user of your website be held to the terms of your disclaimer if he’s never actually read it?
Courts have struggled with this question since the dawn of the internet age. In a decision that is only a couple of months old now (entered on November 7, 2013), one court in Virginia that has done some research on this issue said, “[O]ne general principle that emerges is that the validity of a browsewrap [agreement] turns on whether a website user has actual or constructive knowledge of a site’s terms and conditions prior to using the site.” (AvePoint, Inc. v. Power Tools, Inc. (W.D. Va., 2013), available at https://www.vawd.uscourts.gov/OPINIONS/CONRAD/avepointpowertoolsopor.pdf)
So if you have or plan to put a disclaimer on your website, make room for it in a prominent way on your landing page. Above all, do not bury it to make it hard to find. If you are not going to force your site visitors to click through to the disclaimer, at least place it in a way that helps you claim that a reader knew or should have known that the disclaimer is there. There are still hurdles to prove your claim that your disgruntled reader had actual or constructive knowledge of your site’s disclaimer, but you have a better shot at proving that if the disclaimer is easy to see or get to.