By Paul M. Collins, Attorney and Counselor at Law
Note: Attorney Paul Collins provides assistance to AOE clients with their legal matters.
It may feel like websites have been with us for a long time, but in fact, websites are new enough that there have been relatively few judicial decisions pertaining to them. Therefore, the use of website disclaimers is an emerging area of law and there are no set rules or guidelines. Some best practices, however, can be recommended.
In general, it is important to consider not only the content of the language, but the accessibility of the disclaimer for a user of the website.
When drafting content, pay special attention to areas of the website that provide technical advice to users. These are of particular concern because a user may argue that he or she suffered damage due to relying on the advice. It’s a good idea to place the disclaimer at a “gateway” on the website, appearing before a user enters the technical page and requiring the user to check a box acknowledging that he or she has read and understood the disclaimer before proceeding. Additionally, unique disclaimers may be placed near specific “disclaimed” material on the site.
A website’s disclaimer should explicitly protect intellectual property (i.e. copyrighted and/or trademarked material) and identify information that may become obsolete.
To make the disclaimer accessible to users, a link to it should be placed on the visible portion of each page that hosts content which may be of concern. A disclaimer that is buried in an obscure section of a website offers little protection. Some sites may also benefit from having the disclaimer prominently displayed on the home page, so it can be easily accessed and reviewed by any user. Disclaimers protecting copyrighted/trademarked information should be placed on every page containing such information (e.g., in a site header or footer).
Disclaimers are not one-size-fits-all. Their content should be carefully crafted to reflect the actual risks associated with an individual organization. A well-worded—and well-placed—disclaimer can go a long way in protecting an organization from liability…although, in a disclaimer of our own, we must state there’s no guarantee a website disclaimer will offer complete protection.
Contact the team at AOE to help get answers to questions about your organization’s website.
About the author:
Paul M. Collins is an attorney with Miller, Canfield, Paddock and Stone LLP. He represents non-profit corporations, including the American Concrete Institute. Paul is also a licensed professional engineer, and during his previous experience with the Michigan Department of Environmental Quality, Paul was the primary author of many of Michigan's environmental construction and operating permit regulations.