Why Blog Disclaimers Don't Offer Much Protection From Legal Action

Blogs often feature disclaimers designed to stave off any legal action. That's not the worst idea in the world, but you can't automatically fall back on the presence of a disclaimer if the rest of the blog appears to ignore its existence entirely.

Picture by Colin Purrington

In the same presentation at WordCamp Melbourne where she examined the job risks of using Twitter, lawyer Alex Farrar pointed out that a disclaimer won't be much help if what you actually write is clearly at odds with the disclaimer itself:

It depends on the nature of the disclaimer and the nature of the blog. People often feel protected by having a disclaimer, but there is a real issue as to whether it conveys any more than the intention of the parties involved.

Farrar gave the example of a blog which professes to represent only the opinion of an individual, but which then quotes extensively from others. If someone objected to seeing their content reproduced in that way, the content of the blog would tend to undermine the claim made by the disclaimer that it was individual opinion.

As ever, a little common sense goes a long way. What you do in your own time is your own affair, but if you identify yourself as working for a particular company, don't be surprised if that company isn't too happy if the content of your blog should prove controversial.


Comments

    A disclaimer is only valid if you can deem that a contract is in place. Which isn't a given. http://en.wikipedia.org/wiki/Australian_contract_law

    A contract also implies a commercial agreement. If it's a commercial agreement than you're a business. Are you licensed appropriately? Are you complying with all applicable business laws? It's a mine field. Even if your disclaimer never gets used - it's an argument that you should be operating as a business.

    Disclaimers are by australian legal precedent and doctrine interpreted as strictly as possible against the issuer. IE if there is any possible argument to ignore the disclaimer - which there almost certainly will be if it was written by a layperson and not a lawyer... it will be discarded.

    But by having the disclaimer - you void any argument that it was a non commercial interaction. You set your liabilities and obligations at the higher level of a commercial provider.

    If you're not a lawyer, or don't have a lawyer to advise you - I generally think that disclaimers are just a bad idea.

      Are you licensed to give legal advice? Because without any disclaimer from you I am assuming you are. Or maybe I should assume you aren't? Now I'm confused!

      A contract implies a 'commercial agreement'? Can you point to an authority as to the implied nature of contracts?

      You seem capable of making claims of authority on facts ("precedent and doctrine") yet you lack the ability to actually cite those authorities.

      Are you a Lawyer or a Wikilawyer? Judging (yes I am) by the statements you made, the latter is more likely.

      In that case, let me direct you to a more relevant piece of information from the very same source of knowledge you've elected to use.

      http://en.wikipedia.org/wiki/Disclaimer

    Whilst I cannot provide legal advice, (a disclaimer itself!!!) most disclaimers or exclusion clauses are used to ward off legal challenges despite their being unenforceable.

    Think of the last time you've been to secure parking and seen a sign either at the boom gate or in the car park itself denying liability for any number of things, worse yet if it is on the back of the boom gate issued ticket. In these cases you have no way of being able to fully appreciate those disclaimers prior to accepting them.

    Whilst not enthralling for most nor entirely "good law" I recommend those interested read:
    Thornton v Shoe Lane Parking [1971] 1 All ER 686 specifically Lord Denning's judgment

    Parker v South Eastern Railway (1877) 2 CPD 416

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