What is a disclaimer?
A disclaimer is a legal statement with the purpose of absolving the person/group/company issuing advice or products of legal responsibility for any harm that comes to a person who used the advice or products.
The scope of disclaimers:
- Disclaimers can be fair and reasonable. Sometimes they warn against the inappropriate use of goods; for example, a company selling drills may issue a disclaimer that they will not accept responsibility for eye damage to those who use the drills without eye protection.
- Disclaimers can also be used in a much more objectionable fashion. Those who are giving unsound or even dangerous advice, and those who are selling highly dubious products on the back of extravagant claims, tend to have comprehensive disclaimers on their literature or websites.
We have a tendency to ignore small print. In fact, that's why disclaimers are written in this fashion; those who use them often do not want them to be read. The reason is that disclaimers often reveal a lot about the claims being made.
What to look out for:
- Disclaimers that are designed to absolve claimants of all legal responsibility regarding their advice or products indicates that their claims would otherwise leave them open to prosecution. This is why companies offering cancer cures and such like always have a carefully-worded disclaimer.
- Disclaimers that contradict the claim being made. Those who give alternative health advice, for example, often criticize modern medicine, they distrust "big pharma", they may make more extravagant claims such as vaccines and medicines are poisoning us; but they usually have a disclaimer stating that their claims and advice is for "information purposes only" and that we should seek professional medical advice. Why? If they are right and their advice is sound, why the contradictory disclaimer?
- Disclaimers that shift the burden of responsibility. It is quite common for disclaimers to suggest to people "use at your own risk". It can take several forms, such as: our life-changing advice is for "entertainment purposes only". The bottom line however, is that those who are harmed by the advice or product have only themselves to blame.
"The contents of this publication reflect the opinion of the author only. This publication is for informational purposes only. Opinions expressed should not be construed as medical advice. The particulars of any person's concerns and circumstances should be discussed with a qualified health care practitioner prior to making any decision which may affect the health and welfare of that individual or anyone under his or her care."
That sounds sensible enough; however, that particular disclaimer is from a website that attempts to prove that vaccines don't work, that germs and infections are not the cause of disease, that the entire medical profession does not understand the true cause of disease, that childhood diseases like measels are good for children, and goes on to advise parents not to vaccinate their children because vaccines do not work (according to the author).
That is an example of someone who clearly is not prepared to face the consequences of his advice, and that speaks volumes about the (lack of) quality of the advice.
A classic psychic example:
The fraudulent mediums act (1951) states:
1.-(1) Subject to the provisions of this section, any person who-
with intent to deceive purports to act as a spiritualistic medium or to exercise any powers of telepathy, clairvoyance or other similar powers, or in purporting to act as a spiritualistic medium or to exercise such powers as aforesaid, uses any fraudulent device, shall be guilty of an offence.
Then in section 5:
Nothing in subsection (1) of this section shall apply to anything done solely for the purpose of entertainment.
This is the reason why programmes that claim their mediums can pass messages on from the dead, such as 6th Sense with Colin Fry, always have the caveat: "for entertainment purposes only".
If Colin Fry is a true "psychic medium" and he really is channelling messages from the dead, why use a disclaimer?
One area where disclaimers abound is in alternative medicine. This is an example from Holland and Barrett:
"The information presented in Healthnotes is for informational purposes only. It is based on scientific studies (human, animal, or in vitro), clinical experience, or traditional usage as cited in each article. The results reported may not necessarily occur in all individuals. For many of the conditions discussed, treatment with prescription or over-the-counter medication is also available. Consult your doctor, practitioner, and/or pharmacist for any health problem and before using any supplements or before making any changes in prescribed medications."
That is quite clearly written to protect Holland and Barrett from any legal repercussions as they are probably well aware that most people will not consult a doctor before using alternatives.
Do not ignore disclaimers. They are often written in small print and are conveniently hard to find and read; but they are there for a purpose.
The good news is that disclaimers can be used as a tool to help determine the quality of a claim, advice, or product. If those who are making claims have to hide behind disclaimers, then there must be a good reason for it.
The key issue with disclaimers is whether or not they are fair and reasonable. If they are not, such as an author who gives potentially life-threatening advice but absolves himself of all responsibility, it shows that the claims they are making are weak, misleading, false, or even dangerous.
The classics are "for entertainment purposes only", and "for information purposes only"; however, any disclaimer that attempts to remove all responsibility from the claimant should invite the question: "why?" - The answer is usually self evident.
- In UK law, a disclaimer does not absolve a person or organisation from their responsibility. They can still be prosectuted. An unreasonable or inappropriate disclaimer will not act as a valid defence in a court of law.
- in 2008, the Fraudulent Mediums Act was replaced by The Consumer Protection from Unfair Trading Regulations 2008