This post is part of a series of posts entitled A Legal Guide to the Internet. For a comprehensive list of articles contained in this series, click here.
Similar post: Legal Requirements for Coupon Language and Disclaimers.
It is important to include web site disclaimers. Disclaimers put visitors on notice and are essential to limiting the liability of the web site owner. As with other disclaimers, web site disclaimers should be easy to find and easy to understand. Often, the disclaimers are listed on a separate legal page.
If using a web site legal page, there are certain considerations to keep in mind. First, if the disclaimer is significant and seriously affects your liability, that disclaimer should be placed alongside the appropriate text and not buried in the legal page. Second, there should be a notice on the home page that legal restrictions apply to the web site, and visitors should be directed to the legal page before proceeding beyond the home page. There should be a warning that they will be bound by the terms and conditions contained on the web site legal page and that they shouldn’t proceed without a visit to the legal page. Third, the web site legal page should be clear and easy to read and as formal as appropriate. Finally, one may consider requiring web site visitors to indicate their acceptance of the terms and conditions in a clear and unambiguous way such as by clicking on an “Accept” button. See the discussion above concerning enforceability of “point and click” license agreements.
The following is a list of disclaimers that should be listed on any web site.
Restrict Permissible Uses Of Web Site Materials
There should be a warning that prohibits the reproduction, distribution, or retransmission by visitors of any materials posted at the web site without the prior permission of the web site owner. One right that can be granted to web site visitors is the right to download a copy of the materials for personal non-commercial home use.
Provide Copyright And Trademark Notices
Copyright notices should be placed wherever appropriate on a web site. Copyright notices alert visitors that their rights to use the material are limited which make it impossible for violators to later assert a defense of innocent infringement. Also, copyright notices are often essential in foreign countries. Trademark notices alert visitors that their rights to use the symbols and characters at the web site are limited. Also, Federal trademark law requires active policing of the trademark and failure to stop unauthorized users can result in “abandonment” of a federally registered mark.
Limit Open-Ended Liability For Damages
As discussed above, businesses must place reasonable limitations on potentially open-ended liability. One suggested method is to limit the types of damages that may be sought by web site visitors. For example, a web site owner should exclude liability for consequential damages incurred by web site visitors. Another way to limit liability is to impose a cap on damages. Caps, however, must be reasonable in order to be enforceable.
Consumer protection laws restrict the ability to limit liability under certain circumstances. Also, if conducting electronic commerce, the Federal Trade Commission requires that any liability limitations be accompanied by a warning that such limitations may not apply in certain jurisdictions.
Disclaim Responsibility For Errors And Omissions In Web Site Materials
Businesses should warn that the information on the web site might include inaccuracies and out-of-date information and should require that use of such information be at the web site visitor’s own risk. Also, businesses should further provide that all documents, audio, video, software and other data are provided “as is” without warranty of any kind. If conducting electronic commerce, this provision should be carefully drafted to reference any applicable warranty provided in a separate license or other document.
Disclaim All Implied Warranties
Businesses should disclaim all warranties implied by law, especially in situations involving software. For example, the implied warranty of merchantability would guarantee that material delivered by the web site owner is consistent with “quality standards in the trade.” The ability to disclaim implied warranties is also restricted by consumer protection laws. If conducting electronic commerce, the Federal Trade Commission mandates that any liability limitations be accompanied by a warning that such limitations may not apply in certain jurisdictions.
Disclaim Responsibility For Material Posted At Linked Sites
The law is unclear as to whether a web site owner can be vicariously liable for material on sites to which it is linked. The most prudent course is to disclose to web site visitors that the web site owner does not regularly review materials posted on the sites to which it is linked, that the web site owner does not necessarily endorse all of the materials appearing on such linked sites, and that any decision of web site visitors to view any of the linked web sites is at their own risk. Businesses should also consider the laws of the state. Linking to sites containing gambling, lottery, pornography, and any other sites that may be unlawful may subject a business to an unwanted lawsuit.