Someone asked me this on Instagram regarding the disclaimer I add to most of my legal posts on social media so I thought I’d share my answer here:
“I’m curious to learn more about the legal importance of your disclaimer. Specifically, the post itself gives some tips on what you consider good practice to do, and it concerns potential legal issues. How can this not be “legal advice”? What is the problem with giving advice? I can’t imagine it would be possible to hold you responsible for advice you give without any contract between us?”
– gwen_ro
Great question, I’m glad you asked.
You would be surprised how many people think they can replace a lawyer with a google search. The advice I have given is general advice, not applied to any particular scenario. This is an important distinction because “legal advice” is typically defined along the lines of “a specific response tailored to the facts given by a questioner, and given as if it were definitive.” Giving legal advice under this definition would make me someone’s lawyer, subject to liability and malpractice if anything goes wrong.
The disclaimer is to make it clear that I am not providing legal advice for anyone’s particular scenario, I am not their lawyer, and they should seek one before acting on what they read because a single fact can completely change the accuracy of what I have posted.
A reasonable person would not read my posts and then conclude that they are okay to act on it because “their lawyer” said so…. but it does happen, and in law we like to err on the side of caution. Unfortunately, just because they likely won’t win the case, doesn’t mean they can’t try to sue. Following proper procedure makes the case easier to dismiss, and avoid any issues with the ethics board. An ounce of prevention… 😉
And actually it is good practice according to our ethical guidelines (at least in California) for me to disclaim where possible.
For an example of how quickly things can change and why you shouldn’t act without actually consulting a lawyer on your particular situation, when I say:
“Typically, the person who takes a picture owns the copyright”
….this is generally true but can easily change depending on the circumstances. For example, where an employee takes a picture under conditions within the scope of their employment, the company owns the copyright without the need for a contractual assignment. Where an independent contractor takes a photo for a company, the independent contractor owns the copyright. Under Copyright Law, certain acts by an independent contractor can allow the business to own the copyright. BUT in the State of California, if you choose to enforce your rights on this, the independent contractor then becomes categorized as an employee, subject to completely different rules with wide reaching effects much beyond that of copyright law.
And I can go on and on, as most of law has a general rule, subject to 5 exceptions with 20 exceptions to the exception. But basically, the disclaimer is for “CYA” purposes.
Hope this helps 🙂