In this video, you will get answers to these questions:
- Why are stupid disclaimers everywhere?
- When do disclaimers make a difference?
- When might courts ignore disclaimers?
- Are email disclaimers effective?
- Should you use a disclaimer?
Why are stupid disclaimers everywhere? Do disclaimers sometimes make a difference? When will a court pay attention to a disclaimer? Those are questions I am answering today. I’m Aaron Hall, an attorney representing business owners and entrepreneurial companies. If you don’t yet have the Seven Common Legal Mistakes For New Businesses cheat sheet that I give out, you can subscribe for that at aaronhall.com/free/. As indicated, it’s free. You will also get some videos that explain some of those concepts in there. And again, it’s free.
Why are stupid disclaimers everywhere? Well, what am I talking about with stupid disclaimers? This might be a big, long disclaimer in every single email that somebody sends out, or it might be at the beginning of every video that somebody creates. Perhaps it’s on the front of a product manual or on a box, or on product packaging. So often, I see just long, stupid disclaimers. Why are they everywhere? Well, the idea is that if people are on notice of something they shouldn’t do because of the disclaimer, the company that created the product or the content can’t be held liable for that stupid action.
In other words, “hey, we warned people not to do that dumb thing.” “Court, we can’t hold us liable.” Unfortunately, there are some court decisions that have perpetuated the need for these ridiculous disclaimers. Some people may have heard of the lawnmower court case where somebody used a lawnmower, held it up, trimmed hedges, and the blades cut the hands. Then the question was, “does the lawnmower company need to have a disclaimer on the lawnmower that says you can’t lift it up to trim your hedges?” That’s an example of, in my opinion, a stupid disclaimer.
But why are these stupid disclaimers everywhere? Because companies don’t want to be sued, and individuals don’t want to be sued. And so the easiest way to kind of put people on notice of an obvious misuse of something is a disclaimer. For example, as an attorney, I have a disclaimer in the description below. I have a disclaimer on my website. I will often even state a disclaimer. What am I talking about? It’s when I say, “Hey, this is educational information. I am not your attorney. I am not representing you. If you need help on an issue, go talk with an attorney in your jurisdiction. Keep in mind; this is just general educational information on the internet.” It’s kind of like publishing a book. I am trying to make very clear to somebody that if you’re going to rely on the content of these videos, you should consult with an attorney first. I am trying to educate you on the issues to discuss with an attorney. This isn’t a replacement for an attorney and trying to do everything on your own. Why am I doing that? Because I don’t want somebody to do something wrong someday and then say, “well, I saw this video from Attorney Aaron Hall, and he said to do this, and that’s what I did. And so Aaron should be liable.” That’s an example of why I use disclaimers.
When do disclaimers make a difference? Well, when there is an obvious risk of misuse of information or content, or a product or a service, and you want to make sure you did your part to tell the user, the end user, don’t misuse this. Use it for its intended purpose.
When might courts ignore disclaimers? Sometimes courts will ignore disclaimers when they weren’t obvious. Here’s a great example when a bunch of information is sent to somebody, and it says, “If you don’t respond within 30 days and reject the terms of this agreement, then these terms are binding on you.” That’s a case where the court might say, “no, they didn’t proactively approve; you are trying to get them to indirectly approve by not declining the terms.” So a court might say, “I’m not going to enforce that,” or a court might enforce that. That could go either way. It really depends on the circumstances.
So one example of when disclaimers may not be enforced by a court or may not benefit the author of the disclaimer is when the disclaimer was not obvious. It was buried in fine print, or it was in some other area where the person had to go review additional information in order to see what the disclaimer said.
Are email disclaimers effective? I have generally gotten rid of email disclaimers for me because, for example, you will often see attorneys say, “This information is privileged. It’s protected by attorney-client privilege. It’s subject to the work-product doctrine protections. Well, if that’s going on every single email, and many of them are not privileged, does that disclaimer become meaningless and have no weight to it? That certainly would be an argument if this were presented in court. But here’s the counterargument. If somebody is trying to admit evidence into court, let’s say it’s an email. The attorney on the other side could say, “judge, right there on the email itself, it said this is protected by attorney-client privilege.” So that would be an example where having it on the email could be helpful.
Here’s another example of where an email disclaimer might be helpful. Let’s say you are a sales representative, and there are certain terms that the company imposes on every transaction. The footer or the signature block might say, “any offers or acceptance in this email are subject to these terms.” And then the terms might be laid out.
Now, is it guaranteed a court would enforce that? No, nothing is guaranteed, but it certainly could help. And so, that is the type of disclaimer I have put in emails for my clients when there is a very specific purpose for it, and it aligns with this type of communication that that individual or company is using.
All right, so what would I recommend you do? I would think about, “are there certain risks of misuse that should be made obvious to the end-user or the recipient of your communications?” Those are the sorts of things to discuss with your attorney and put together an appropriate disclaimer tailored to that particular risk.
Now, if you are interested in avoiding common legal mistakes that made by new businesses, I have a cheat sheet that you can download. You can get it at aaronhall.com/free/. And then you will also get some occasional emails from me with some videos explaining some of the concepts on the cheat sheet and how to protect yourself.
This is educational material. It’s not the replacement for an attorney, but it does allow you to educate yourself and equip yourself with knowledge of the law. If you have any follow-up questions, feel free to put them in the description below. I do my best to use those comments and questions in the descriptions to put together future videos. If you found this helpful and you would like other educational, legal videos like this, you are welcome to subscribe to the channel. And you can also take a look at the description below for other resources related to owning a business and trying to grow a business in a way that avoids common legal problems.