Are Disclaimers on Websites Legal?
Liability in English Law for Mistakes on the Internet
Nov 4, 2009
Websites providing information or advice often contain statements that the information they provide is on an “as is” basis, “does not replace professional advice” or other such provisions designed to limit the liability of the site's owner if the information proves to be invalid, inaccurate or outright false. However, until recently, there has been very little case law to determine the validity of these disclaimer statements.
What is a Disclaimer?
At its most basic, a disclaimer is simply a statement renouncing responsibility, especially responsibility for advice. In legal terms, however, not every statement abdicating responsibility will be an effective legal disclaimer. They are often found in places where contracts are routinely made, and their validity is often questionable at best.
When is a Disclaimer Invalid?
It is not possible to simply discharge responsibility for negligence or, under section 3(2)(b)(i) of the Unfair Contract Terms Act 1977, provide “a contractual performance substantially different from that which was reasonably expected” and then rely on a disclaimer to prevent one's self from being sued for breach of contract.
Similarly, it is not possible to limit liability for personal injury; so a disclaimer at the till of a shop selling defective children's toys will have no legal effect if a child is injured through reasonable use of any toy sold there. The key is, of course, reasonable use: the actions of both parties to any contract can be taken into consideration by a court when determining fault.
In order to be considered valid, a disclaimer must only renounce responsibility for specific issues and cannot simply be a disclaimer “for any and all losses, howsoever caused”. As a rule of thumb, the wider the range of the disclaimer, the more likely a court will rule that it violates the Unfair Contract Terms Act 1997.
Where Must a Disclaimer be Placed?
In order to be valid, a disclaimer must be brought to the attention of the contracting party before the contract is made. Failure to do so will be an attempt to change the terms of a contract; which both parties must agree to in order for the change to be valid. If the change is not agreed to, the contract remains as it stood when it was made.
For example, where a car park is made available for use “at owner's risk” and the owner attempts to absolve himself of responsibility for damage to vehicles, a disclaimer notice must have been displayed somewhere visible to the car driver when they enter the car park. A sign by any ticket dispenser may be acceptable, as it is at the time the parking ticket is purchased or dispensed that the contract becomes valid. A sign at the back of the car park, hidden out of the way of the majority of drivers and not visible at the time of entering, will not.
For websites, the issue of where to place a disclaimer is a difficult one as it is not always possible to predict which pages a visitor will access. However, the recent case of Patchett v. SPATA [2009] suggests that a disclaimer placed on the “About Us” page of a website may be sufficient. In this case, the disclaimer recommended that users of the website request an information pack before entering into a contract with any company listed on the site; which was found to be reasonable.
The Patchett case is important to website owners and maintainers in that although SPATA was found liable for the potentially misleading nature of its site (which failed to differentiate between vetted and unvetted listings and thus left Patchett open to risk of loss), the presence of a disclaimer recommending that users exercise reasonable care limited their liability.
Disclaimers on websites are therefore legal in some circumstances. A statement that information on websites is provided “for guidance only” and “should not be used in place of expert advice” may be a valid contractual term, provided it is reasonably brought to the attention of the site's users.
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