Drafting a disclaimer: this is what belongs in it

Drafting a disclaimer involves clearly stating which liability you limit, without going beyond what the law permits. A good disclaimer states the reservation regarding the accuracy of information, excludes liability for damage caused by use to the extent permitted, and refers to your general terms and conditions for contractual agreements. What you can never exclude is liability for intent or willful recklessness. Below is what should be included and where the boundaries lie.

The short answer

1. Determine the goal: what information or service do you want to cover?
2. State the disclaimer: the information has been compiled with care, but without guarantee.
3. Limit liability: for damage caused by use, to the extent permitted by law.
4. Rule third-party content: distance yourself from user statements or external links.
5. Refer to: your general terms and conditions and privacy statement.
6. Stay within the limits: no exclusion of intent, conscious recklessness, or personal injury.

Drafting a disclaimer: the standard components

A useful disclaimer contains a limited number of standard elements. The first is the reservation regarding content: you state that the information has been compiled with care, but that you do not guarantee its completeness and accuracy. The second is the limitation of liability: you exclude liability for damages arising from the use of the information, to the extent permitted by law.

Additionally, include a provision regarding intellectual property, stating that texts, images, and logos are protected and may not be reproduced without permission. Conclude with a reference to your general terms and conditions and privacy statement, so that visitors know where the contractual and privacy agreements are located.

Make sure you stay within the limits

The biggest mistake with a disclaimer is trying to go too far. Text that excludes all liability will not hold up and can even backfire. Stick to these limits:

• Intent and conscious recklessness: never to be ruled out.
• Reasonableness and fairness: invoking an exemption clause may be unacceptable pursuant to Article 6:248 paragraph 2 of the Dutch Civil Code.
• Blacklist: exclusion of liability for death, injury, or serious damage towards consumers is voidable (Art. 6:236 BW).
• Grey list: other far-reaching exclusions are presumed to be unreasonably burdensome (Art. 6:237 BW).

A realistic disclaimer limits liability “to the extent permitted by law”. This wording prevents the entire clause from failing if one part goes too far.

Align the disclaimer with your general terms and conditions

A disclaimer on a website usually does not bind an ordinary visitor as a contractual clause. If you truly want to limit liability in your relationship with customers, that limitation belongs in your general terms and conditions, which become part of the agreement. However, the disclaimer and the general terms and conditions must be aligned and not contradict each other.

Also, do not confuse the disclaimer with your privacy statement. The disclaimer concerns liability and information, while the privacy statement concerns the processing of personal data under the GDPR. Keep both documents separate, and refer to the privacy statement from the disclaimer rather than mixing up the topics.

Different emphases per type of website

The content varies depending on the type of website. A simple business site containing only contact details requires only a brief disclaimer. A site offering advice or calculators adds that the information is general and does not replace personal advice. A platform with user-generated content includes a disclaimer distancing itself from statements made by users and from linked external pages. Therefore, tailor the text to what your site actually offers, rather than adopting a standard block that does not fit.

Practical example

An online supplement shop publishes blogs containing nutritional information. The owner drafts a disclaimer stating that the information is general and does not replace medical advice, that visitors should consult a doctor in case of complaints, and that liability is excluded to the extent permitted by law. He includes the strict limitation of liability regarding sales in his general terms and conditions, aligned with consumer law. In this way, the disclaimer covers the information and the terms and conditions cover the sale.

Honest recommendation

For a simple informational website, you can easily draft the disclaimer yourself. A short, honest reservation with the phrase “to the extent permitted by law” suffices, provided you do not view it as a guarantee against every claim. Refer to your terms and conditions and privacy statement, and you are all set for most sites.

Engage a lawyer if your website contains advice, calculators, medical or financial information, or user content, or if you wish to seriously limit liability in the client relationship. In such cases, it comes down to aligning the disclaimer with your general terms and conditions, and to wording that respects the black and grey lists. A lawyer prevents an overly broad exclusion from invalidating the entire clause.

Want to read more? View the disclaimer product page, first read what a disclaimer is and see what it costs to have a disclaimer drafted.

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