What is a disclaimer?
A disclaimer is a statement that excludes or limits a party’s liability under a contract, tort or the law more broadly. Disclaimers provide warnings to people, for example, when they are visiting business premises, visiting a website or taking part in certain events or activities. The purpose of disclaimers is to:
inform individuals about potential risks posed to them (especially those that may lead to injury or harm)
clarify who will be held accountable in case the occurrence the individual is at risk of occurs (ie the disclaimer seeks to exclude the business’ liability)
Disclaimers are different from waivers, as disclaimers seek to limit a business’ liability while waivers are used by a party to a contract to give up (ie waive) some of their rights.
When are disclaimers used?
Disclaimers are used in a variety of circumstances. Examples of disclaimers businesses may use include:
content disclaimers - websites, blogs or other publications will often use disclaimers to clarify that any information provided is for general informational purposes only. This helps protect the business from potential legal consequences if someone relies on the information and experiences negative outcomes
advice disclaimers - businesses that provide information and general advice (eg financial or legal advice) may use disclaimers to explain that their content does not constitute professional advice. This helps safeguard the business from potential legal claims if someone follows their suggestions and incurs losses
health and safety disclaimers - businesses operating in hazardous industries (eg construction) or involved in event-planning (eg sporting events) may use disclaimers to highlight safety precautions, warn about potential risks, and limit their liability in case of accidents or injuries. Note that disclaimers cannot exclude or limit liability for death or personal injury caused by negligence
personal responsibility disclaimer - disclaimers can emphasise that individuals are personally responsible for their actions, decisions and items. For example, a disclaimer for a gym may state that the gym accepts no responsibility for private property (eg items like shoes or clothes) whilst on the premises. This type of disclaimer is known as a ‘disclaimer’
allergy disclaimers - food businesses use these disclaimers to inform customers about potential allergens or allergenic substances present in food products. They aim to alert individuals with food allergies or sensitivities to the potential risks associated with consuming certain ingredients. Note that these are different to allergen labelling requirements. For more information, read Food safety and Food labelling
affiliate disclaimers - disclaimers may be used by a business that has affiliate relationships with other businesses (eg under Affiliate agreements) to promote their goods or services. Such disclaimers tend to disclose the affiliate relationships and ensure transparency and compliance with advertising regulations
email disclaimers - businesses that engage in communications with external parties (eg clients) may wish to include certain disclaimers in their email signatures. For example, they may wish to limit their liability for any computer viruses that affect recipients or errors in transmission. They may wish to highlight that any views contained in an email do not necessarily reflect the views of the business. Consider making communications disclaimers using an Email footer and disclaimer
Disclaimers inform individuals about potential risks for which a business is seeking to limit or altogether exclude its liability. Disclaimers may not always be effective and cannot guarantee that legal action won’t be taken. However, they help protect a business.
As disclaimers are specific to a business’ individual situation, they should be tailored to your specific needs. Ask a lawyer if you require a bespoke disclaimer.
Are disclaimers legally binding?
Disclaimers have certain legal implications. However, whether or not a disclaimer is enforceable depends on various factors. These include:
the clarity of the language used in the disclaimer
whether the disclaimer complies with all relevant laws and regulations
the specific circumstances of the situation
While disclaimers can help manage expectations and provide information, they cannot fully absolve a business from its legal obligations or liabilities.
When is a disclaimer effective?
The Unfair Contract Terms Act 1977 and Consumer Rights Act 2015 place restrictions on disclaimers. Under these Acts, businesses are not able to rely on disclaimers to exclude or restrict their liability for negligence where this negligence causes death or personal injury. In cases of loss (eg financial loss) or of damage to property, disclaimers may be effective provided they are reasonable in all the circumstances.
Under the Consumer Rights Act, disclaimers must be clear. Businesses should ensure that they are written in plain language, easy to understand and legible. Further, disclaimers should not be unfair. For more information, read Doing business with consumers and the Government’s guidance on unfair contract terms.
Disclaimers must also be clearly brought to the attention of individuals before they can be effective. How this is achieved depends on the specific circumstances of the situation and the risk level associated with the situation (eg the risk level of an event). As a general rule, the more onerous the disclaimer the greater prominence it should be given.
How should disclaimers be provided?
Disclaimers are typically provided to individuals as a statement to be signed or a sign or notice.
If a disclaimer is provided as a statement to be signed, a copy of the disclaimer should be made for each individual. After reading the disclaimer, the individual should sign it to indicate that they have read the disclaimer and understand and acknowledge its content.
If the disclaimer is provided as a sign or notice, it should be physically displayed at the premises (eg as a poster) or on the website (eg as a separate disclaimer page linked in the website footer or as part of the Website terms and conditions). The sign/notice should be visible and easily readable to individuals when they access the premises or the website.