07 February 2013
This is the second article in a series designed to provide practitioners of energy based techniques with information about essential risk management tools. In my first article I explored several ways that both licensed and non-licensed practitioners of energy therapies can find themselves in costly and debilitating legal dilemmas because of what is published on their websites. In this article I will discuss the importance of having a disclaimer on your website, provide some of the basic information that should be included in your website disclaimer, and explain why in order to be effective the placement of your disclaimer on your website is critical.
First, it does not matter if you are an individual practitioner (licensed or non-licensed), part of a group practice such as a wellness or integrative care clinic or an organization...you need a website disclaimer. A disclaimer is generally any statement intended to specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally-recognized relationship. Your website is like a "contract" between you and each visitor to your website and thus you become legally and "contractually" bound by what you publish on your website. Another way to look at your disclaimer is that it's a type of "informed consent" for each visitor. By posting your disclaimer prominently and by having the specific legal language you need for your website, the viewer agrees to the terms of the disclaimer. This agreement should include that the visitor assumes any and all risks associated with viewing and/or using any of the information contained on your website.
You need a disclaimer on your website to reduce your significant legal risks. While is it clear that disclaimers provide no guarantee of any shield from liability, you need a disclaimer so as to be able to at least have some claim to a defense. There is a recently published case in New Zealand (Patchett v SPATA) where a visitor to the SPATA website filed a claim of negligence; the court found SPATA's disclaimer was effective in protecting SPATA from liability.
What legal risks you face depends on the content of your website. Many energy based practitioners provide information, advice, and/or instructional information on their websites which exposes them to potential legal claims. For example, you could be sued for negligence if someone claimed to suffer any injury (physical or emotional) because the person followed advice you provided on your website. The risk of facing a lawsuit is greatly enhanced if you provide any instructional information about a technique, process, or modality on your website. Let's say you provide on your website the basic steps or process on how to do an energy technique/intervention and state that the technique/intervention can help depression or make you feel more positive. What if your visitor suffers from severe depression and in using the process published on your website claims that he/she didn't feel any more positive and in fact claims his/her depression got worse instead of better? Not only are you at risk for being sued for negligence but also for providing misleading information that could also lead to a claim of misrepresentation and potentially fraud. Remember a claim can be made by a disgruntled visitor even if there is no merit to the claim. You still have to hire a lawyer and defend the claim. Given our ever-growing litigious society and the fact that energy modalities are considered experimental by the authorities and most of the public, only heightens your legal risks associated with having a website. Not to mention the Federal Trade Commission Task Force investigating innovative practitioners' websites and enforcing the laws which prevent deceptive and unfair acts or practices.
There is no 'standard' language that applies to disclaimers. Each disclaimer must be tailored to include precise language to fit the specifics of the website both in terms of the substance of the material and how it is intended to be used. General language will not suffice. A disclaimer is useless if it is borrowed from another website or is a generic form. An appropriate disclaimer has many elements depending on the nature of the website and the contents thereof. Some of the key points are:
Not only is the content of you disclaimer important but also the placement of it on your website is crucial. You could have an excellent disclaimer but if it isn't positioned correctly on your website, it can be rendered meaningless. Ideally, the disclaimer should be a portal through which the visitor must go through to access the contents of your website. This means that visitors must be instructed to read and agree to the disclaimer before exploring your website. This act forms the basis to argue that the visitor entered into a "contract" with the publisher of the website that includes that the visitor used the information on the website with full knowledge of (informed consent) and agreement with ("contract") the disclaimer. If it is merely tucked off into some inconspicuous link that can be easily bypassed by the visitor, the publisher's argument that a contract has been established has very little merit.
The value of disclaimers depends upon the skill with which they are drafted so to use some form copied from another website will turn out to be legally ineffective. If you rely on some generalized disclaimer to protect yourself, you may find that in an attempt to "save" money you have caused yourself to incur substantial losses. The cost of engaging the services of a risk management consultant or lawyer that has the expertise in energy therapies to help you with your disclaimer is a sound investment. It is my hope that the information shared with you in this article has been helpful - and speaking of disclaimers - here's mine.