IVAN HOFFMAN, B.A., J.D.
Given our ever-growing litigious society, books, web sites, CD-ROMs, DVDs and other media that give advice or provide instructional information should most definitely include appropriate, legally drafted disclaimers. Disclaimers are also appropriate when dealing with topics that may result in claims of defamation and invasion of privacy. While it is clear that disclaimers provide no guarantee of any shield from liability, the author and publisher of these materials should include a disclaimer so as to be able to at least have some claim to a defense.
A word about terms in this article. I use the term “publisher” in this article to refer to any party that puts out any such material. For simplicity sake, I use the term “disclaimer” to apply to any language designed to relieve the publisher from liability for the material, whether such “disclaimer” is technically deemed a warning (i.e. “be careful when you use this material etc.) or an actual disclaimer (“Publisher is not responsible for any damages etc.”).
There is no “standard” language that applies to disclaimers. Each disclaimer must be tailored to include precise language to fit the specifics of the project both in terms of the substance of the material and how it is intended to be used. General language will not suffice. In this regard, publishers who rely on “boilerplate” found in form books or language provided by colleagues whose projects are unrelated in subject matter, content and the like to the material in question, run the substantial risk that the disclaimer will be legally ineffective. If the publisher has relied on this generalized disclaimer to protect itself, the publisher may find that in an attempt to “save” money the publisher has caused itself to incur substantial losses. Read “The Do It Yourself Publishing Lawyer.”
Furthermore, the disclaimer must be positioned in connection with the material so as to be obvious to the reader etc. and stand out from the rest of the material. Ideally, there should be a provision in such disclaimer for the user to act affirmatively if he or she refuses to accede to the terms of that disclaimer, such as by returning the book etc. That way, in some fashion, if the reader etc. does not so act, the publisher may argue that a “contract” was formed with the reader etc. making the reader etc. bound by the terms of the disclaimer. See the discussion below in terms of the Internet.
With all disclaimers, the mere inclusion of a disclaimer, even if properly drafted and placed, often does not provide any legal protection. In other words, there is simply no assurance of any sort that any disclaimer is going to provide any legal protection whatsoever. If a court finds that the disclaimer is defective, or is defectively placed, or that the publisher actually knew or should have known of the risks etc. to the reader etc., the use of a disclaimer will generally be disregarded. Disclaimers dealing with potential defamation and rights of privacy materials should note that the “usual” disclaimer (“This is a work of fiction. No resemblance etc.…”) is probably legally useless *if* a person can actually be identified in the movie etc.
Contracts With Contributors
The actual writer of material is often held to a different legal standard from the publisher since it is that writer that is deemed to actually have researched the material and is presumably an expert. The publisher’s liability is generally based on either the theory that the publisher knew or should have known that the material so published was dangerous or erroneous and failed to warn readers, viewers, site visitors and the like. Thus, it is one defense for the publisher to say that it relied on the expertise of the author and did not investigate the truth of the matters provided by the author.
However, if the publisher has taken on a more active role, the liability of the publisher may be greater than that of mere negligence. However, if the publisher has more knowledge than that of a mere publisher, the liability of the publisher may be co-existent with that of the writer. It is essential that the acquisition agreement by which the publisher acquires publishing rights (author agreement, content license or the like) be express in the representations and warranties made by the creator or licensor of that material. It must state what is being warranted and must cover the issues faced by the particular material (safety, defamatory etc.). There should be accompanying indemnity provisions including provisions for allowing the publisher to withhold payments to the author in the event of a claim including, if appropriate, language regarding cross-collateralization. In addition, at least in the author agreement, there should be some provisions stating that the publisher has no duty to investigate the factual or other basis of the material. Whether this is a valid defense as to third parties is unclear but it may be valid as to any defensive claims made by the author or other creator or licensor.
On the Internet
In addition to the substantive information above, when putting together a disclaimer for a web site, the traffic on that site must be made to flow through the disclaimer. This means that visitors to the site must have to go through a screen containing the disclaimer so that the publisher may have some basis to argue that the visitor entered into a “contract” with the publisher that included that the visitor used the information on the site with full knowledge of and agreement with the disclaimer. If it is merely tucked off into some inconspicuous link that can be easily bypassed by the visitor, the publisher’s argument has very little merit.
Insurance and Other Measures
The publisher should strongly consider having liability insurance if it is considering publishing potentially risky material. However, the policy must be carefully examined to make certain that it covers all the potential bases of liability for that publisher. Read “Publisher’s Liability Insurance.”
In addition, under the right circumstances, it would be a wise decision on the part of the publisher to establish a corporation or limited liability company in an effort to further shield itself from liability. These entities too have some problems associated with them and you should read “Incorporation or LLC?” Here too there is no assurance of any sort that any such entity will provide any legal protection whatsoever.
The value of disclaimers
depends upon the skill with which they are drafted and resort to some form
copied from another work may turn out to be legally ineffective.
The danger is that because the publisher believes that it has some shield,
the publisher may then not seek to cover itself from liability in other
ways. It is worth repeating: there is simply no assurance of any
sort that any disclaimer is going to provide any legal protection whatsoever.
© 2001 Ivan Hoffman