Offensive Material Disclaimers

Does your business use materials that may be seen as obscene or even just controversial? Do you allow users to post their own content to your site?

If so, you'll need to warn visitors about the potential of encountering offensive material on your site.

Offensive material disclaimers protect your visitors from experiencing content they're too young for or simply don't want to see. More importantly, these disclaimers add an extra layer of protection from liability in the event that someone-even and especially you-uploads something that damages your business.

Here's what you need to know about offensive material disclaimers - and how to write an effective one and save yourself from frivolous lawsuits or lost customers.

What's a Disclaimer?

A disclaimer is a statement that works to inform your users while protecting you from the liability associated with sharing, selling, or simply existing on the internet.

You can use a disclaimer in many ways:

• To deny responsibility
• To deny a service
• To deny a product
• To warn a customer

By using a disclaimer, you're letting visitors know that you're not at fault if they're unhappy with something on your site. Because they have seen the disclaimer, they have assumed the risk.

Here's an example:

Running a Travel Forum

Say you run a small website with a forum for travellers to swap ideas and stories. The site doesn't include anything lewd or obscene at its core. However, because it's directed primarily by external account holders with some direction from a moderator, you can't be sure what is happening in every thread on every message board.

One day, you wake up to find a flurry of angry emails in your inbox. The moderator and many participants are complaining about a page that has surfaced related to buying illicit drugs. The page doesn't violate your Terms and Conditions, and you want to avoid using a heavy hand in moderation, so you choose to leave it up. After all, drugs aren't being sold, only discussed.

Fortunately, you wrote a content disclaimer for your site stating that not only is your site's policy to include all content relevant to branches providing it does not facilitate illegal acts, but also that these discussions may pop up from time to time.

Now that you're aware of the thread, you can slap a second disclaimer on the message board warning visitors to avoid it because it may contain content other users find objectionable.

Without that disclaimer, you'd be forced to make a decision with no policy basis and ultimately alienate one - or both - of the user groups with your decision. More importantly, you're protected from escalating complaints because account holders agreed to the Terms and Conditions and the disclaimers when they signed up for the site.

What's an Offensive Material Disclaimer?

If a disclaimer denies responsibility or liability, then an offensive material disclaimer denies responsibility or liability in the event someone encounters offensive material on your website.

These disclaimers are widely used on sites with adult themes or sites with sections devoted to content that some people may find offensive.

However, sites based on user participation also use these warnings: YouTube, Wikipedia, and other sites with heavy contributor input have significant offensive material disclaimers.

How to Draft an Offensive Materials Disclaimer

Offensive material disclaimers include two parts:

The first is acknowledgement and warning of explicit or possibly offensive content may exist on the site.

The second part presents an agreement telling the reader that proceeding to the content means they must hold themselves accountable for their own feelings on the nature of the content.

Thus, when someone proceeds past the disclaimer, you're in a less vulnerable position in the event visitors find something they find offensive because:

• The site explicitly warned them with a disclaimer, and
• The disclaimer explicitly shifted responsibility to the customer

We'll provide detailed examples of several types of disclaimers at the end of the post.

Regulating Offensive Material - What You Need to Know

Why are offensive material disclaimers necessary? After all, isn't it up to the consumer to choose what content they want to see? Why should you be held responsible if someone willingly came to your website and found something they didn't like?

The answer to these questions is complex, particularly because it is so easy to access the internet and find yourself in deep water.

Media and communications have changed significantly not only in the past 20 years but also in the past five years. If you wanted to see adult themed materials prior to the explosion of the internet, you needed to seek them out.

Now, potentially offensive content pops out at you without asking. More importantly, it also exists within the same media sites you may get news and other information from.

You don't even need to go looking for the material - an advertising algorithm may bring the material to you. Encountering media this way is so common that Unilever threatened to pull ad revenue from Facebook and Google unless the sites stopped showing its ads next to offensive material.

In a statement, a Unilever company rep said:

"Unilever will not invest in platforms or environments that do not protect our children or which create division in society, and promote anger or hate."

Unilever's threat is a big deal - the conglomerate is the second largest buyer of online ads.

The Legal Answer to Offensive Material -"Great Internet Sex Panic of 1995"

What about the legal aspect of disclaimers? Wading into the depths of the law becomes tricky in part because laws too often wade into violating First Amendment rights when attempting to "protect" consumers from offensive material.

Legislating offensive material began in 90s. When the internet exploded, the U.S. Congress reacted with the Communications Decency Act of 1996 (CDA), also known as the "Great Internet Sex Panic of 1995." The act was the first attempt to regulate access to pornography and pornographic material online.

The act produced two primary effects.

First, it attempted to force websites to regulate indecency and obscenity. Secondly, it indemnified Internet service providers (ISPs) from liability when sites produced this kind of content on their servers.

Several parties challenged the more controversial nature of the CDA. In Reno v. American Civil Liberties Union, the Supreme Court found that the indecency provisions of the law were unconstitutional because they curtailed First Amendment rights.

Since 1996, two more attempts have been made to regulate the dissemination of indecent materials to children: the Child Online Protection Act (COPA) and the Children's Internet Protection Act (CIPA).

COPA made is a crime to willingly and knowingly upload material considered to be "harmful to minors" for "commercial purposes" without some type of age verification process in place.

CIPA applies to schools and libraries with internet access and requires these institutions to place protections on the internet to prevent children from reaching unsafe sites.

Both acts have been challenged by free speech activists, and COPA was overturned in 2008. But many important provisions remain in place.

The bottom line: If your site shows indecent or obscene content and can be accessed by children, you need to protect yourself with a disclaimer.

When Do You Need A Disclaimer?

You need an offensive material disclaimer anytime you're dealing with content in any form that some people may find:

• Upsetting
• Insulting
• Disturbing
• Obscene
• Offensive

It doesn't matter whether your company or a user posts the material - a disclaimer protects you when someone else has a complaint.

Why Do You Need an Offensive Material Disclaimer?

Disclaimers protect your business from liability in the event that someone tries to bring a lawsuit over material found on your site.

While speech is protected by the law, not all speech receives the same protections. For example, hate speech is not protected by legislation and can result in a site being taken down.

Additionally, if you are working with regulated materials - such as pornography - and do not place a disclaimer in addition to age verification, you'll open yourself up to lawsuits.

In addition to expensive litigation, you might incur:

• Hefty fines
• Sites shut down
• Restrictions on use
• Bad PR

Disclaimers are particularly important when you're allowing people unaffiliated with your organization to contribute to your site. It's still possible for contributors to slip in potentially offensive material even when you have filters, moderators and editors.

Using a disclaimer provides blanket protection in case something inappropriate flies under your radar.

Finally, disclaimers protect your brand. If a contributor runs amok on your site, the disclaimer makes it clear that the material produced does not reflect the beliefs or wishes of your brand.

What Happened When Snapchat Didn't Use an Offensive Material Disclaimer

You might wonder why you really need a disclaimer if everything on your site is straightforward and generally inoffensive. But the truth is that you never know who's looking, and if you aren't in direct control of what visitors see, then you could be facing a serious nightmare.

Just ask Snapchat.

Snapchat -- a social media application allowing users to share photos and videos in real time -- was sued in 2016 by a John Doe plaintiff. The complaint was that the "Discover" tab of the app showed minors "sexually offensive content" without providing a disclaimer.

The "Discover" tab feature allows users to see content provided by media partners like Vice and BuzzFeed. BuzzFeed is a news organization who regularly discuss adult themes in both a serious and jovial manner, and produce articles on sexual topics.

The heart of the issue was that Snapchat curated the content provided by those media partners, but it's algorithm appeared not to discriminate based on age. More importantly, there was no warning - not in it's Terms of Service, nor on the Discover page - that the content and even the headlines of the content might be explicit or offensive.

As a result, kids using Snapchat could and were finding themselves looking at materials they weren't necessarily ready for.

According to the lawsuit:

"While adults should be free to consume any of this material, and may themselves find it to be humorous and witty, the fact that Snapchat does not differentiate content offered to its minor users and adult users is problematic, and ultimately a violation of Federal and State consumer law. Compounding matters is that adult content and images appear to be directly marketed and advertised to minors based on the use of cartoons, childhood relatable images and very young looking models."

Where Do You Place an Offensive Material Disclaimer?

An offensive material disclaimer can be placed in one of several places depending on the content you provide and the type of site you run:

• Pop-up upon arrival to the site (for adult themes)
• Separate disclaimer section covering the whole site
• Above specific pages or sections, e.g. in the comments section of an article or at the top of a blog post
• In the Terms of Service or other legal agreements

Just make sure the disclaimer is noticeable, accessible and available fairly easily.

Examples of Offensive Material Disclaimers

Wikipedia includes an offensive content disclaimer that covers everything from depictions of violence to graphic images of human anatomy, controversial topics, triggers for post-traumatic stress disorder and other things that may be "considered profane, vulgar or offensive by some:"

The Utah State University Library Archives website has a disclaimer that notes that some of the historical collections may contain materials that may be offensive and considered to be stereotyped or prejudiced. There's a reminder that the materials are resources in the study of past cultures:

The Bottom Line

The law on offensive material remains relatively limited to pornography, and rules for dealing with other content remain opaque. But because the internet is open and we live in a litigious society, it's still important to protect yourself - and your customers - from content that may be deemed offensive.

An offensive material disclaimer informs visitors that they may encounter something they don't like on your page AND shifts the burden onto them when they do find it.

Remember, a disclaimer doesn't need to be complicated - it just needs to relate to your business and your customers in a way that relays transparency even when the law doesn't.