Introduction

Like it or not, putting information up on the Web has legal consequences in each country from which the Web page is accessible. The wise publisher or content provider will try to limit those consequences by adding legal disclaimers to the Web page.

The length and content of Web page disclaimers, and the potential liabilities at which they are aimed, vary greatly. Some are only a few lines long. Others, typically those holding information that could affect personal safety, stretch to at least a page. Often they are combined with notices aimed at protecting rights, especially copyright, to information on the page.

Within this paper you will find information on

Effective Disclaimers
Types of Disclaimer
Bringing the Disclaimer to the User's Attention
Privacy and Data Protection
Other Considerations
Protecting your Own Rights

which you can access quickly by clicking on the section listed above that interest you.

Effective disclaimers

To devise a single disclaimer effective in all jurisdictions in which it may be read is probably impossible, and certainly very expensive. The extent to which liability can lawfully be disclaimed, and how that can be achieved, varies from country to country. Language is also a problem. A disclaimer written in English is unlikely to be effective in Mongolia.

Although the law of the country in which the page is accessed is likely to be the one governing the effectiveness of the disclaimers, it may be thought possible to alter this by including a statement to the effect that the law of a particular country applies. The rules that govern which country's law apply in such a situation are complex, and may depend on where the litigation takes place. But the effectiveness of such a clause may itself have to be tested according to the law of the country in which it is accessed. There would probably be particular hurdles to overcome in showing that the user had accepted the clause and was legally bound by it.

Software companies who put up products for downloading from the Net face similar problems. Some have resorted to using contract terms with a wrap-up clause that simply states that the exclusions may not apply in all jurisdictions, or that they apply to the extent permitted in each jurisdiction. None of these formulations is wholly satisfactory, but compromises of this sort may be tempting when, as with the Web, you address the world at large. The only safe approach is to provide separate easily accessible disclaimers for each country, written in appropriate languages and based on local legal advice as to what is effective in each jurisdiction. However, that is not a trivial task.

The effectiveness of disclaimers may vary, not just with the country, but also with the nature of the right or liability in question. For instance, under English law it may be possible to disclaim some types of liability for actions taken in reliance on the content of a Web page. But liability for defamation cannot be effectively disclaimed. So disclaimers need to be considered in the context of each type of potential liability.

Notwithstanding these difficulties, some general guidelines as to the types of disclaimers appropriate on a Web page can be identified.

Types of disclaimer

Responsibility statement

Most Web pages include links to third party materials. Shopping malls, on-line magazines, even simple pages with links to other interesting sites, will all include access to third party material. But users may not immediately realise what is your material and what is not, or even when they are leaving your site. It is sensible to make clear what is your material and what is third party material, and to ensure that you do not assume any responsibility that you would not otherwise have for the contents of third party material.

Note that under English law, if you link to third party material which is defamatory you may be liable for publishing it. It is unlikely that a disclaimer would make any difference to that, so think carefully about what you link to.

Liability statement

In respect of your own content, you may wish to disclaim liability for anyone taking actions in reliance on the information. It is in any case a legal grey area whether you would be liable. As a rule of thumb the more likely it is that someone could injure themselves (or someone else) or suffer physical damage to property as a result of relying on your material, the greater the risk of liability. So if you are thinking of putting a guide to edible fungi on the Web, think very carefully and take legal advice first. Mushroom books have been a fertile source of legal case law in more than one country! More prosaically, there are obvious liability implications in putting up medical advice, do-it-yourself tips, and other such everyday content. The potential liability has not deterred traditional publishers, but Web publishers face the added international dimension.

Be aware that many countries (including the United Kingdom) restrict the efficacy of liability disclaimers. They may even make it an offence to seek to restrict or exclude certain types of liability. These laws are most likely to bite on disclaimers aimed at liability for death or personal injury, but may go much wider than that.

Territory statement

The trans-national nature of the Web creates potential risks for advertisers on the Web. Are your products illegal in some countries? Even if the products are legal, is advertising them illegal? Are there conflicting trade mark registrations in other countries? Are your products subject to conflicting copyrights elsewhere?

The ideal solution would, if it were possible, be to prevent access from specified countries. However, this does not appear to be possible in practice. Another approach, adopted by some Web sites holding material or offering services that may be illegal in some countries, is to warn users from certain countries not to proceed beyond an entry page. If it were possible to deny access by technical means, the efficacy of such a warning would be extremely doubtful, at least for some types of risk. Even if access cannot be denied by technical means, the efficacy of such a statement is likely to be debatable.

If the concern is conflicting trade mark registrations, then it may be appropriate to specify that the goods and services described are available only in specified countries. Whilst the efficacy of this may vary from country to country, it addresses the underlying rationale of trade marks that they are aimed at trading activities. Any territory statement should, however, also be reviewed for any competition law implications.

It should be appreciated that in some cases (eg copyright infringement, privacy rights, rights of publicity, illegal material) merely accessing the material on the Web page could be an illegal or actionable act in the user's country, even if nothing is downloaded to hard disk.

Bringing the disclaimer to the user's attention

Some Web sites start with an entry page which sets out the disclaimers and requires the visitor to acknowledge and accept them before proceeding further. Others have an inconspicuous "Disclaimers" link at the foot of the page, which jumps to the legal wording. There are many variations in between.

The key point is that unless the disclaimer is sufficiently drawn to the attention of the user, it will be ineffective. The "entry page" approach is best, but may be unpalatable to the marketing department. It is certainly best to ensure that the visitor sees the disclaimer on the first screen before he reaches the content of the page. A prominent link to the legal wording at the top of the first page may perhaps work, but is more risky. An inconspicuous link at the foot of the page is very risky.

Don't try to be too clever with your disclaimers. There are some lengthy (and apparently seriously intended) disclaimers on the Web which, although prominent, are so frivolous that their authors might as well have not bothered. Some of them may work, some almost certainly do not. Why take the risk? It is hard enough to make disclaimers legally effective at all, without adding to the problems.

Privacy and Data Protection

If you capture information about visitors to your site (especially, but not exclusively, information they give you by filling in a form, or by response e-mail), you have to comply with legislation regarding what you can do with that information. The relevant legislation will tend to be that of the country in which you initially store the data, but the law of the country from which the information is provided may be relevant. Many countries require you to obtain the consent of the user to re-use the information in the ways you will want to do.

Privacy and data protection notices vary from those which purport to allow the Web site owner complete freedom to use the information, to those which promise complete confidentiality of information and respect for privacy. Whatever the policy, it must comply with the relevant legislation. It will almost certainly be necessary to obtain the visitor's acceptance of a consent statement for use of information.

Other considerations

Many types of goods and services are governed by regulatory requirements. You should bear in mind whether your Web page has to comply with any such requirements, including any specified wording.

Protecting your own rights

Your Web page will contain material over which you have proprietary rights. There will be trade marks and copyright material, and there may be other relevant rights. The Internet is notorious for lack of respect for intellectual property rights. That makes it all the more important to assert those rights explicitly on the Web page, and to state exactly what you do and do not permit to be done with the material on it. If you do not do so, you may be held to have impliedly licensed copying that you do not wish to allow. It will always be good practice to include formal copyright and trade mark notices on the page.

Some questions you will have to consider in formulating such a notice include: do you allow saving the page to a local hard disk? Do you allow printing it out? Do you allow recopying and onward transmission - if so, to what extent and in what form? If you have third party originated material on your site, how much copying does the author's licence to you allow?

Conclusion

The amount of time and effort that you put in to devising appropriate Web page disclaimers will ultimately be proportional to your investment in the Web as a medium for promoting your business and to the extent of the perceived risks attaching to the content of the page. However, we hope that this discussion has alerted you to some of the issues that you may need to consider when creating your Web pages.

Important Information

This paper gives general information about disclaimers under English law. It does not give legal advice. Specific legal advice should be obtained in relation to any proposed action. The discussions in this article are in the context only of Web pages consisting of free information. Paying access is not covered.

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