I know that people are litigious and will sue anyone for anything, but that having been said…
One of my fishing buddies has a website where he does reviews and offers affiliate links to fishing related products. Nothing fancy.
But he recently asked me if I thought he should put up some sort of liability waiver and if he did, would it really protect him in court if someone buys something he recommends and then hurts themselves with it it some way?
My thoughts are that all liability lies with the manufacturer and/or actual seller.
So two questions…
Does liability like this commonly extend to simple “I like this thing, and think it works great” recommendations?
Do website “click here to accept these terms” liability waivers generally hold up if things go to court?
Although I’m all in favor of creative ways to make people liable when someone gets hurt, I think (absent the most extreme behavior) it would be impossible to *successfully *sue someone for a simple web recommendation about a product.
To prove negligence the plaintiff would have to establish “duty, breach, and causation.”
What duty applies here, and who does it extent do? How did the website breach that duty?
These are tough questions in your scenario.
Moreover, injured plaintiffs are looking for “deep pockets.” They get no satisfaction (usually) is suing someone who has no available insurance or assets to cover the damage done. If the product was defective in some way, the logical entity to sue is the manufacturer and/or seller. For some product liability cases there is “strict liability” for defective products. (These cases aren’t easy, but there is a body of law to guide you through it)
I was trying to think of an exception to what I stated above. Maybe if the website said something like “It’s fun and easy to put nails inside your motorcycle tires and take bets on how long it will take for the tires to blow at highways speeds.” Even then, I think you’d have a tough case.
I don’t see any need for a “click here” waiver on the website (Disclaimer: I’m not offering legal advice here, as your friend is not my client and I don’t have enough information to give professional advice)
It wouldn’t hurt to state something like “all opinions offered on this site are simply the personal views of the writer, and should not be considered an endorsement of any particular product and should not be relied upon when evaluating the safety and usage of these products.” etc etc.
He may wish to craft a disclaimer at the end of his reviews: “The information in this article is the opinion of the author and is to be used for entertainment purposes only. The final decision to purchase any equipment lies solely upon the purchaser, and my reviews should not be construed as an endorsement of the product” or similar.
If your friend is being compensated by the manufacturers for his reviews, then he may very well be liable, to the extent of his compensation. If he isn’t being compensated, then he should be disclaiming in his reviews that he hasn’t received compensation for his reviews.