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Thread: Anyone know about disclaimers?

  1. #1
    Moderator Kay is a Premium Member
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    Anyone know about disclaimers?

    I think most people just slap the usual thing on: "...this is provided for your information and entertainment and is not intended to be taken as advice... blah..."

    However, I'd like to look into the subject a bit more closely. In the UK, it's illegal to give any kind of financial advice unless you are registered with certain professional bodies. I don't know about other countries but I expect they'd have laws about that too. It's similar for medical matters, on my expat site we had a friendly GP who was willing to answer simple questions on the forum but his lawyer freaked out so he couldn't do it.

    What's essential in a disclaimer?

    Does a disclaimer actually protect you if someone decides to sue.
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  2. #2
    Marketing Mentor Mikl is a Premium Member
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    In the UK, it's illegal to give any kind of financial advice unless you are registered with certain professional bodies.
    Not quite. In general, it's illegal to give financial advice unless you are registered with the appropriate regulatory body. That is not at all the same as a professional body. (A regulatory body is usually set up by statute, and has statutory powers; professional bodies are generally set up by, and governed by, their members; but there are some important exceptions.)

    Furthermore, the above paragraph generally applies to firms that give financial advice to specific individuals or companies. It does not necessarily prevent you from giving generic advice in a newspaper article or on a website, for example.

    Does a disclaimer actually protect you if someone decides to sue.
    It might. Even if you are giving generic advice in a newpaper article, if you are claiming professional competence in the subject, and if the advice you give can be shown to be negligent, an aggrieved person could take action against you. In that case, a disclaimer might help in your defence. That would depend partly on how it was worded, and how prominent it was.

    Note that this does not only apply to financial, legal or medical advice. It could also apply to cooking, travel, fitness, and the like.

    Now, before you finish reading this, let me make it clear that I am not qualified to give legal advice, and you should not act on any of the information given above without taking steps to verify its accuracy. If in doubt, take proper legal advice.

    (For what it's worth, I have a disclaimer on every page on all my sites.)

    Mike

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    Top Contributor grynge is a Premium Member
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    In Australia disclaimers are pretty much useless if they aren't beholden to the law itself. A few years ago someone had the "Beware of Dog" sign on their premises, a person entered and was mauled by the dog, the courts found that the owner knew the dog was dangerous and had given warning to that effect so he was liable for the dogs act. You can't have a disclaimer stating the person can't sue you in event of an accident, as that's not the law, whatever statutory rights you have you can't sign them away.

    Much is happening here where the banks used shonky mortgage contractors, those contractors would change figures on your application form to give you the loans, the banks are now having to come to terms with people who couldn't afford a 2million dollar loan on the government benefit, the banks had disclaimers of course but it hasn't helped them because of the shonky practices they employed to get the loans.

    My disclaimers all have "Please Note your Statutory Rights are not affected by anything appearing in these terms and conditions." and again just like anything legal it all boils down to who is going to pay to get the case drawn up if someone does break a disclaimer.
    And they thought me broken, that my tongue was coated lead, but I just couldn't make my words make sense to them, if you only listen with your ears ... I can't get in
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    I think disclaimers are valid, to a point. If someone is providing general medical, legal or financial or other information on a website and another user tries to claim that they were entitled to rely on the general statements as medical, legal or financial advice that applied to their specific situation, the disclaimer may be useful. If, on the other hand, someone gives specific advice that a reasonable person would view as medical, legal, financial or other advice and the person giving the advice appeared to be qualified to give such advice, I would be worried that a disclaimer would not protect the person dispensing the advice.

    I respond regularly to legal questions on forums, but I am careful to word my answers in a way that the reader understands that the response is to be viewed as general guidance and is based on broadly applicable legal principles and the limited facts he provided in his question. I often add a specific statement along the lines that laws vary widely from jurisdiction to jurisdiction and that facts that seem insignificant to him may materially change the analysis. I do not want to leave the impression that any guidance I provide can be viewed as legal advice. I don't feel comfortable leaving my potential protection to the website's general disclaimer.

    Of course, even if there is no legal liability, I feel that there is a moral responsibility to make it clear that a few words from an unknown person on the internet are not a substitute for advice from a lawyer who is in a position to gather the material facts and apply the law of the appropriate jurisdiction.

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    New Member Mentor JimWaller is a Premium Member
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    "Legalese" can be so tricky. Simply by changing one word, the whole meaning can change. There was a group in Florida that was pushing for a law stating that child molesters will be chemically castrated, but to get it pushed through it was changed to child molesters may be chemically castrated making it optional and resulting in far fewer instances of chemical castration. One word changed the whole intent. When you get into disclaimers, it gets even trickier trying to fit multiple jurisdictions. Unfortunately, there is not one size fits all disclaimer that will protect you everywhere. Just look at grynge's "beware of dog" example.
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  10. #6
    Marketing Mentor Mikl is a Premium Member
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    Just look at grynge's "beware of dog" example.
    Isn't that somewhat different?

    What the law is saying in that case is that you can't disclaim responsibility for dangerous actions or behaviours. If you keep a dangerous dog, you have an absolute obligation to prevent it from mauling members of the public. The point about the Beware of the Dog notice was that it was evidence that the owner knew the dog was dangerous. But it was unlikely that that would have clinched the case. If the notice hadn't been there, the owner would still have had a hard time proving the he didn't know the dog was dangerous.

    In most jurisdictions, the owner or operator of a dangerous animal, machine or facility has absolute liability in the event of death or injury, and you can't disclaim that. A notice in a hotel saying that customers use the pool at their own risk would have no validity. Nor would one in a factory saying that the management cannot be held responsible for any accidents caused by their machinery or equipment.

    But surely that's different from the sort of case we are talking about here: where someone holds himself up as an expert in a given field, gives advice in that field, and the advice causes a financial loss?

    Mike

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    New Member Mentor JimWaller is a Premium Member
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    You're right that it is different, but I was trying to point out that sometimes a sign is considered sufficient, like a wet floor sign, otherwise why have them as a form of disclaimer? It seems to me like it should be enough to have the beware of dog sign, so people know to stay away, but somehow that has become not enough and the sign is like an admission of guilt that you know the dog is dangerous. It is like the infamous coffee is hot case that resulted in having to have a warning that "contents may be hot" on the cup. These are the types of things that will lead to disclaimers being useless over time. With that said, I suppose it can't hurt to have the disclaimer in place in case it will protect you. So in the case of "financial loss", the disclaimer may or may not actually protect you, but it may be sufficient deterrent to the potential end user that it acts similarly to the beware of dog sign. (Insert "I am not a layer" disclaimer here)
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    JimWaller raised a very good point. We sometimes lose sight of the fact that the primary purpose of the disclaimer should be a warning that the reader will understand and heed, not just a CYA for the person posting the disclaimer.

    Sometimes warnings just become background noise, particularly where the warning seems to be everywhere, like the warning that "contents may be hot" on a cup. Hopefully someone is extra careful when he sees a wet floor sign, but if every grocery store posted a sign at the entry that said "Floor may be slippery in places" the warning would not change the conduct of most shoppers. It would not serve the purpose of deterring accidents and would probably offer no protection in a slip-and-fall case.

    I see one example in real life every winter. A few years ago a pedestrian was killed in Chicago when a large chunk of ice fell from a building on Michigan Avenue. Now, when there is any significant snow or ice storm in Chicago, almost every building puts signs on the sidewalk saying "DANGER - FALLING ICE." It is impossible to walk from one place to another without passing buildings with the signs. From experience, I know that some buildings have ledges or design elements that are more likely to accumulate ice during and after the storm, but the uniform warnings make it impossible for the average pedestrian to heed the signs (unless of course the person walks with his eyes to the sky, in which case he is more likely to trip over a curb or step in front of a taxi, which is far more likely to cause injury than the random and infrequent chunk of falling ice).

    That is the main reason that when I answer a question on a forum that either the original poster or another reader might take as legal advice, I don't rely on an overall disclaimer in the forum's terms and conditions, even if it specifically states that no advice on the forum should be taken as legal advice.

    If you write a disclaimer with the intent of actually deterring the action you wish to prevent, you will be much better off.
    Last edited by Kay; 4 July 2013 at 2:07 am. Reason: Promoted to front page article

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