Lawyers are often asked by their clients who write blogs whether or not they should have a legal disclaimer on their blog. Here, leading intellectual property lawyer Jamie White answers that question.
Perhaps the motivation for this question is quite simple and sparked by mere curiosity. Or perhaps, it is to discover how accountable they may be for the content they produce (or reproduce), products they endorse or opinions they express. Whatever the motivation may be, bloggers can be prolific publishers and curators of content and, in some cases, control and own a powerful platform to influence others.
So, our answer to the question of whether or not bloggers should have a disclaimer on their blog is usually along the lines of, “displaying a disclaimer on your blog is better than not having one”.
The decision to display a legal disclaimer on your website or blog in an attempt to deny responsibility for misconduct (including copyright infringement, defamation, trade mark infringement and deceptive trade practices), whether inadvertent or otherwise, will not provide absolute protection from others taking legal action against you. This is particularly the case when it comes to consumer protection legislation, as liability there cannot be avoided or, “contracted out of”.
However, the benefit of displaying a disclaimer on your website or blog is that the whole of your conduct, in any given situation, will be considered. The disclaimer may also have the consequence of breaking the chain of causation between your conduct and the loss suffered by a party alleging your misconduct.
When it comes to displaying a disclaimer, be sure to display it in a location where a person reading your blog would reasonably expect to see it. Hiding a disclaimer in the footer of a website and in small or grey font may not be as effective (or enforceable) as displaying it in a more prominent position on your website.
Purely reconciling the positioning of the disclaimer against aesthetics may be a risky decision making process. However, this is a decision for you to make and a risk for you to take.
Whether or not you decide to display a disclaimer on your website or blog is a decision for you yourself to make. However, given the relative ease of displaying it, the negligible cost and, potentially, the great benefit that it will serve you, you would be blogging mad not to! Are you sneaking up on a legal suit, one blog at a time?
Jamie White is Solicitor Director and owner of Pod Legal and practices exclusively in the areas of Intellectual Property, Technology and Social Media Law. He is a Solicitor of the Supreme Court of Queensland and the High Court of Australia, a Registered Trade Marks Attorney, and an Adjunct Teaching Fellow at Bond University.
Follow @mybusinessau on Twitter for breaking stories throughout the day.
Find out why you should join the SME Association of Australia.