Do Disclaimers Work?

This blog post was first published on 15 June 2019

I was chatting to a client this week and we were talking about the mandatory legal clauses she needed on her website. My client is a personal trainer and she suggested a disclaimer clause. I told her that a disclaimer was a great idea and whilst it was definitely on the list it wasn’t mandatory in law. The conversation progressed and I warned her that disclaimers don’t offer protection from liability and I thought it would helpful to explain why.

Please note: this blog is legal information only and does not constitute legal advice.

What is a disclaimer?

A disclaimer is legal wording, often a few paragraphs, that businesses provide to clients to protect themselves from litigation. For example, a personal trainer might advise that anyone training with them needs to complete a health assessment questionnaire first and not be suffering from any injuries. A personal trainer may also want to provide a warning to warm-up and cool-down before and after exercise to reduce the risk of injury. This is an attempt by that trainer to exclude liability for anyone who injures themselves if they did not heed the warnings.

Similarly, businesses may include disclaimers to advise that results may vary. A life coach may advise that most clients need say 10 sessions, but that some may require more.

How does a disclaimer work?

If correctly drafted by a lawyer a disclaimer will provide full protection from litigation, right? Wrong. You can’t simply put a disclaimer on your website and then act totally negligently. So a personal trainer can’t put a disclaimer in their paperwork and then meet with a new client and tell them to complete a seriously dangerous set of exercises and then seek to enforce the disclaimer when something goes wrong.

A disclaimer does not protect against gross negligence and in fact there are certain things which in English law you cannot limit your liability for at all.

In what ways is a business unable to limit their liability?

In English law you cannot limit or exclude liability for death or personal injury caused by negligence, liability for fraud or strict liability offences. This has to be so. As per the example above, someone cannot be entirely reckless and simply say that they have wording on their website warning people of the risks. that wouldn’t offer a customer or consumer any protection at all.

For many people reading this you may find it surprising. You may have seen notices in places like gyms or swimming pools which explicitly state that a business is not liable for you getting injured. (I’ve seen them too). The reality is that should there be an incident a Court will look at the facts and not simply dismiss a case because there is a disclaimer.

Are disclaimers a waste of time?

I can appreciate that what you’re thinking now is if liability disclaimers don’t provide protection what is the point in having them? Firstly, remember that English law only prohibits a narrow class of disclaimer, for the most serious types of consequences. Disclaimers are used daily by businesses all over the world. If, for example, you’re a health food blogger, you may draft a disclaimer on your site to set out your clinical qualifications.

Disclaimers act as warnings to users that there are limits on the content they are using. They do provide protection in some instances and a Court will certainly consider them. If there is a problem, a business can show that they had taken every opportunity to warn users of risks, including placing disclaimers on their website.

In addition, disclaimers can often be used well by bloggers. Taking the example of sharing recipes, you may be sharing recipes you love and you may have no qualifications, if that’s the case you will want to put a disclaimer, not just in your website terms of use but within every post. This acts not only as a warning but also a transparency indicator. It allows you to include your personal view or thoughts on a topic but you can add the caveat that this is your personal opinion only.

Disclaimers are very commonly used and are often found within website terms of use. They help to protect users and business owners. For more tips like this, be sure to sign up for my legal letters. Just pop your details in here and I’ll be heading to your inbox soon.

Do you use disclaimers in your business? Would you like to?

Lucy x

P.S. The Get Legit Legal Essentials Bundle includes the terms you need to sell legitimately online, including disclaimers.