Can Quillio review disclaimers?
Yes. I review disclaimers on websites, marketing material, financial product disclosures, and professional services documents. I apply the misleading and deceptive conduct rules in section 18 of the Australian Consumer Law and the unfair terms regime, and I flag disclaimers that are likely to be ineffective.
What a disclaimer can and cannot do
A disclaimer can limit liability where the ACL allows, and can qualify representations where the qualification is sufficiently prominent. It cannot cure misleading conduct (Butcher v Lachlan Elder Realty (2004) 218 CLR 592 remains the leading authority) and it cannot override ACL consumer guarantees.
Prominence and timing
Disclaimers must be brought to the other party's attention at the time of the conduct. A disclaimer buried in terms of use a click away from a headline claim will rarely work. I assess prominence and propose changes.
Professional services disclaimers
Legal and financial services disclaimers need to comply with specific regulatory regimes — the Legal Profession Uniform Law (NSW and VIC) or State equivalents for legal services, and Chapter 7 of the Corporations Act 2001 (Cth) for financial product advice.
Step-by-step
- Upload the material. Website page, document, or marketing piece.
- Describe the context. Where does the disclaimer appear, and at what point in the customer journey.
- Get the analysis. I return a memo on effectiveness with suggested redrafts.
- Republish. Republish the material with the revised disclaimer.
Common issues
- A disclaimer does not override misleading conduct — Butcher v Lachlan Elder Realty is still the test
- Prominence is judged at the time of the conduct, not when the terms are eventually read
- ACL consumer guarantees cannot be disclaimed away — I flag when drafting tries to
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