In order to protect themselves from E&O lawsuits from online users, many companies post legal agreements on their website, such as…
- Terms of Use Agreements (also called Terms and Conditions Agreements).
- Privacy Policies.
But what about disclaimers? A disclaimer is usually a short paragraph in which your company discloses certain risks and says it should not be responsible for certain things. In this article, we'll go over when and why you should use these disclaimers.
Disclaimers, Terms of Use, Privacy Policies: What's the difference?
You might be wondering why there are three separate legal documents you need to post on your website. But before we go into how each protects you, let's define each one.
- Privacy Policy. An explanation of what data you collect from users, how you store it, and with whom you share it. (For more information, check out this sample privacy policy and this guide to how privacy policies can protect your business from lawsuits).
- Terms of Use Agreement. This is an agreement between your business and its web users. It outlines how users are expected to behave, what actions are not allowed (e.g., misuse of copyright), and what you are not liable for. (Click here for a sample Terms and Conditions Agreement).
- Disclaimer. Usually specific to certain industries, a disclaimer is used to protect you from liabilities, explaining when you don't own a copyright or shouldn't be held liable for the content of a specific page.
Disclaimers tend to be about the information contained on the site, whereas Terms of Use Agreements and Privacy Policies are about how the site works in general, giving information about how your business stores user information, cookies, email preferences, account information, etc.
In short, because these documents cover different areas, every business needs a privacy policy and terms of use agreement; however, not all businesses need to use disclaimers.
When Do I Need to Use Website Disclaimers?
Website disclaimers usually explain that visitors cannot hold the website's authors responsible for inaccurate information included on the site. This is why web disclaimers are especially important for lawyers, medical professionals, and others who give advice for a living.
Disclaimers can also be used to clarify one company's relationship to another. Let's say your website includes information about third-party software. For example, let's say you post a blog about new Oracle software and an explanation of how it might be useful to certain industries. You could include a disclaimer that says your IT business is not affiliated with Oracle, and the information you provide is not an endorsement.
If you're a web developer making an app or webpage for doctor's office, remind your clients that they need to provide a disclaimer. While it's their lawyer's responsibility to craft one, it's good practice to gently remind clients of their legal obligations.
Can Website Disclaimers Really Protect You from an E&O Lawsuit?
Now let's get down to brass tacks: do website disclaimers really protect your business? While disclaimers are especially important for advice-giving professionals (i.e., medical, legal, and mental health professionals), they probably don't protect most businesses any more than their Terms of Use and Privacy Policy already do. That is to say, they may not offer any additional protection in the event that you're sued. And they won't provide funding for your legal defense in an E&O lawsuit. For that, you need appropriate small business insurance.
For many businesses, it is sufficient to have their lawyer craft a TOU and privacy policy. While you can download free sample website agreements from TechInsurance, keep in mind that it's best to have these agreements tailored to fit your business by a lawyer to include language that protects you from the specific risks you face.
