Disclaimers come in all shapes and sizes. They can be used in email footers, fine print in advertisements, on websites, on blog pages, on podcasts, in videos, effectively anywhere that requires additional information to accompany the medium that is being used.
Disclaimers set out to notify and provide additional information to the viewer or consumer of the medium. Generally, the additional information involves limiting the publisher’s liability in some way, however, disclaimers can also operate to inform, clarify and warn the viewer.
A disclaimer is not a catch all for its intended purpose, they’re seen as an accompanying product to the behaviour or conduct of the publisher to ensure the viewer or consumer of the material has adequate information, or ample opportunity of being informed. They’re also not a set and forget type of product. Disclaimers need to be regularly reviewed and maintained to ensure they’re still operating with the intended purpose and are still visible to the intended audience.
Disclaimers are therefore incredibly important in their operation, and it is vitally important that when they’re used, they are tailored adequately for the medium and intended purpose.
We are often asked whether a business can copy and paste a disclaimer from another business’s website, email footer, or podcast. There are a number of issues with this, firstly, as previously mentioned, disclaimers, are not a catch all, or a set and forget product. They’re designed and tailored specifically for the publishers work and intention. The greater the detail and precision in a disclaimer, the better it will operate for its intended purpose, such as limiting the liability of a business, or ensuring information is kept confidential. Secondly, a disclaimer is protected under copyright law, therefore, if you copy another businesses disclaimer, you are infringing upon their copyright protected material and could be liable for infringement.
The best course of action when considering whether you need a disclaimer for your work is to think about all the ways in which the material in your emails, website, or on your podcast could be interpreted. To prepare a disclaimer ask yourself the “who, what, when, where and why”, these simple terms will allow you to break down your audience, whether anticipated or not, and better understand the type of disclaimer you require and how best to put forward the information with the desired outcome. If you’re unsure whether a disclaimer is needed, this process breaks down some of those barriers and provides clarity around who may be viewing your material.
If there is ever a moment when the work attached to your name or businesses name could be misconstrued and have adverse consequences on a consumer of your material, then it’s vital that you have a disclaimer. You may seek to limit liability, stating that the information contained within is general in nature, or that representations made by you are your opinion and should not be interpreted as professional advice. An example of a basic and general disclaimer might be:
This Video is not financial or legal advice. You should consider seeking independent legal, financial, taxation or other advice to check how the information contained within this Video relates to your personal circumstances and how it may impact you. The publisher is not liable for any loss caused, whether due to negligence or otherwise arising from the use of, or reliance on, the information provided directly or indirectly, by this Video.
There is very little limitation to a disclaimer, and unfortunately, a cookie cutter approach does not work. If you are unsure as to whether or not you need a disclaimer, what to put in your disclaimer, or how to ‘display’ your disclaimer, we can help. We specialise in Commercial Law, including expertise in Intellectual Property and Privacy Law, and can assist in all aspects of your business and start-up needs with the Newcastle and Hunter Valley region. If you require assistance or advice relating to commercial law and disclaimers, please give Jenkins Legal Services a call on 02 4929 2000 or email office@jenkinslegal.com.au.
Jenkins Legal Services can also assist with all matters relating to property, estate planning, and employment law.
Luke Nicolson, Lawyer.
This article is not legal advice and the views and comments are of a general nature only.
This article is not to be relied upon in substitute for detailed legal advice.
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