Website disclaimers

Website disclaimers

Paul Langtry | 27/10/2009

Rupert Murdoch has recently created headlines by insisting that News Corp will force consumers to pay for online content. Where this occurs, the laws of contract apply. In the vast majority of online activity, however, content is disseminated without charge. This generally eliminates the laws of contract. The issue then arises to what extent causes of action can be brought against publishers.

Where entities promote their own products, contract may subsist through incorporation by reference or other means. As such, consider the example of a website that promotes the products and services of other entities.

The first response is to consider an action on the case for negligence.  As is well known, negligence requires a duty of care to exist. A breached duty, where the breach causes damages, completes the elements of the tort. It is more and more likely that courts will find that a duty of care exists for website publishers not to make a material misstatement that affects intended users.

Assuming that this duty exits, it can be nullified by publishing a disclaimer. This should say, very clearly, that the publisher accepts no responsibility whatsoever for the accuracy of the content, and, further, that users ought to make their own enquires. If the subject matter is that practised by a licensed practitioner, a better disclaimer will urge the reader to obtain independent professional advice.

This leads to the most difficult question: to what extent should disclaimers be emphasised? Business need to balance their risk-aversion with the fact that no one wants to publish a website full of disclaimers.  

One argument is that contract law guidelines should be used: the more onerous the disclaimer, the more prominent the display, so that a disclaimer that nullifies total liability might need to have red ink with a red hand pointing to it. On a practical level this is where companies should focus; since the courts are under such  a legislative weight of consumerism that both law and equity are yielding towards the consumer of their own accord.  

The other argument is that, since no consideration is passing from the consumer to the publisher, the disclaimer simply needs to be published on the website. This follows that logic that those who take a free publication cannot complain if they rely upon it without reading the entire publication. Philosophically this is the better view, since the law should not offer protection to volunteers (being those who take benefits for no consideration).   

tags: Business ,  Issues