Protection offered by Disclaimers

Have you ever seen signs like ‘No Trespassing’, ‘Slippery when Wet’, or ‘Beware of Dog’? These signs in reality are basic forms of disclaimers, and the people that put them up are merely trying to protect themselves from legal liability in the event that the worst happens.

What is a Disclaimer?

A disclaimer is generally any statement intended to limit the legal liability and/or obligation of the person or entity that displays it. To specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally recognized relationship is the reason why disclaimer is used.Disclaimers help companies protect themselves against legal claims by addressing liabilities specific to their operations.

Why need a disclaimer?

If you own and operate a blog or any other website, you are offering information of some kind to anyone who accesses your site. If that information should prove to be inaccurate or otherwise damaging in some way, you could find yourself facing a lawsuit. Adding a disclaimer indemnifies you from liability for certain things. Disclaimer can potentially shield you from some form of legal liability or limit your liability for the outcome of the use of your site as the users will be deterred from taking legal action against you.

Disclaimers shield you, your software, and your website from liability—civil or otherwise. They serve as both a warning and a mitigation of risk.

E.g. For those websites that have content related to legal matters, this disclaimer demonstrates that you’re providing general information only, and that it shouldn’t be construed as actual legal advice. Attorney websites and other legal sites may need extensive disclaimers to address these issues.

Disclaimers help companies protect themselves against legal claims by addressing liabilities specific to their operations.

A clear unequivocal disclaimer of affiliation of any kind can be used as a defence to an infringement claim, whereas such a disclaimer in the publicity claim, which is not dependent upon endorsement, could well serve to exacerbate the appropriation.

The object and purpose for imposing disclaimer has been explained by the Supreme Court in the case of Registrar of Trade Marks v. Ashok Chandra Rakhit (1955)where they stated that the real purpose of requiring a disclaimer is to define the rights of the proprietor under the registration so as to minimise, even if it cannot wholly eliminate, possibility of extravagant and unauthorised claims being made on the score of registration of the trademarks.

What all should be there in a disclaimer?

The content that should be included in a disclaimer is going to depend greatly on the type of website you own. The best disclaimer is the one that fits the needs of your business perfectly.To fully protect yourself, your disclaimers must encompass all identifiable areas of potential risk/concerns like third-party responsibility, ownership of content, accuracy of content etc.

If any user of the website can prove that there is some incorrect information on the website and that incorrect information has harmed them in some way, you could potentially be found liable in court. However, if you had an appropriate disclaimer in place to cover the content of your site, you may be able to successfully argue that you are not liable for anything beyond the content.

It is impossible to say exactly what should be included in each and every website disclaimer because sites come in all different shapes and sizes. But some pieces of your site that could be covered by a disclaimer include potential copyright issues, the transmission of viruses, and more.

Kinds of Disclaimers

There are several kinds of disclaimers, few of them are stated below:

1. Copyright Disclaimer - A copyright disclaimer protects original content against user theft. A detailed copyright disclaimer is not legally required but acts as a strong deterrent against copyright infringement. It explains that you own everything on your website and that there will be legal repercussions if someone uses your work without permission.
2. Fair-use Disclaimer - Ifyou have used or are using any content from outside sources, you need to include a fair use disclaimer to prevent your business from being accused of copyright infringement.
3. Confidentiality Disclaimers – They explain that some content is only intended to be seen by a specific audience and no one else.
4. Warranty Disclaimers –These are used by sellers and service providers, to explain that they are not bound by any implied promises about their products in the event of failures or defects.

How much protection is offered by Disclaimers?

It does need to be highlighted that while a disclaimer certainly cannot eliminate the possibility of legal action taking place at some point in the future, it can go a long way toward protecting your best interests.

It will be up to the courts to determine the validity of a lawsuit that has been levied against you, which is where a quality disclaimer could come into the picture. If a court determines that your disclaimers do, in fact, cover the items in question in the lawsuit, you may be protected from liability.

Position in India through Case Laws:

In the case Bharatmatrimony.com Vs The State of Maharashtra (2015) the court dismissed the appeal against the Bharat matrimony as perusal of the Disclaimer of Warranties and Limitation of Liability in the terms and conditions governing the use of the company's website makes it clear that the company has provided certain safety tips and warns every customers/members to be aware about common scams and frauds so that they are not cheated by others. Despite the safety instructions provided by the applicant company, respondent put herself in the present situation due to her own negligence and carelessness.

In the case St. Stephen's College, Delhivs St. Stephen's College Alumni Association & Ors.(2012)the court held that the defendant is entitled to use the name ‘Association of Old Stephanians’, subject to the condition that it will display an appropriate disclaimer on its website, as and when it is started under a new domain name, that it is not the official/approved/recognized alumni association of St. Stephens College and it has no connection or affiliation either with St. Stephens College, Delhi or St. Stephens College Alumni Association.

The court in the case India TV, Independent News Service Pvt. Ltd.vsIndia Broadcast Live LLC & Ors (2007) made it clear that the defendant is permitted to operate its website with a disclaimer which clearly shows that the same has no connection with the plaintiff company. Such a disclaimer if appropriately placed on the impugned website would convey to the browsers that the website has no connection with the plaintiff company or services provided by them.