Email disclaimer

An email disclaimer is a disclaimer, notice or warning which is added to an outgoing email and forms a distinct section which is separate from the main message.[1][2] The reasons for adding such a disclaimer include confidentiality, copyright, contract formation, defamation, discrimination, harassment, privilege and viruses.[3]

The Economist reports that people have long stopped paying attention to disclaimers, claiming they are not legally enforceable.[4] In response to the Economist article, one attorney concluded that email disclaimers have been found to be relevant in numerous published court opinions throughout the United States, though the legal effects would be limited to only certain situations.[5]

Issues frequently dealt with in email disclaimers

Confidentiality

A disclaimer may be added to mitigate the risk that a confidential email may be forwarded to a third-party recipient. Organizations may use the disclaimer to warn such recipients that they are not authorised recipients and to ask that they delete the email. The legal force and standing of such warnings is not well-established.[6][7]

Contract

A disclaimer may state that the email does not form a contract. This may not be effective as the substantive body of the email may contradict and override this. In the case of Baillie Estates Limited against Du Pont (UK) Limited, which was heard in the Outer House of Scotland, it was found that a contract was in effect, as attached to the relevant email, even though there was a standard disclaimer.[8][9]

Republication of emails may be protected by copyright law and a disclaimer may warn that such rights to copy the text of the email are reserved by the originator.[10]

Viruses

Computer viruses may be spread by email. To mitigate the risk that a recipient might sue the sender of an infected email, a disclaimer might warn of the possibility of infection and advise the recipient to conduct their own scan. The disclaimer might provide details of the outgoing scanning which has already been performed to provide some guidance about the level of risk.[11][12]

Effectiveness of disclaimers

In the United States, several courts have ruled that email disclaimers may have a legal effect when intentionally included in an email, generally before the text of the email or in the body of the email. However, no court appears to have ruled on the effectiveness of boilerplate email disclaimers appearing below the signature line in every email.[13]

In the EU, there is a directive which strikes down legal obligations which have been imposed and this would make disclaimers unenforceable. Disclaimers appear to have arisen as a result of imitation and habit rather than because they are effective. As a result, most people no longer take them seriously.[14]

Length and other awards

The Register conducted a survey in 2001 and found that UBS Warburg had the longest disclaimer — 1,081 words.[15] Other categories in their Email Disclaimer Awards included the Most Incomprehensible Disclaimer and the Most PC Disclaimer.[16]

References

  1. ↑ Rand Morimoto, "Using Email Disclaimers", Microsoft Exchange server 2003 unleashed
  2. ↑ A Lampert; R Dale; C Paris (2009), Segmenting email message text into zones
  3. ↑ Alan Davidson (2003), "Email Disclaimers", Plaintiff (56)
  4. ↑ "Spare us the yadda-yadda", The Economist, 9 April 2011
  5. ↑ The Legal Effect of Boilerplate Email Disclaimers
  6. ↑ Theresa Heyd, Email hoaxes: form, function, genre ecology
  7. ↑ Joshua L. Colburn (2006), "Don't Read This If It's Not for You: The Legal Inadequacies of Modern Approaches to E-Mail Privacy", Minnesota Law Review (91)
  8. ↑ Gillian Black (18 November 2009), Formation of Contract: Consensus or Intention? (PDF)
  9. ↑ Lord Hodge, OPINION OF LORD HODGE in the cause BAILLIE ESTATES LIMITED (Pursuer) against DU PONT (UK) LIMITED (Defender)
  10. ↑ Jack Shafer (June 1, 2004), "E-mail Confidential", Slate
  11. ↑ Robert F. Smallwood (2008), Taming the Email Tiger: Email Management for Compliance, Governance and Litigation
  12. ↑ Lynda A. C. Macdonald (2004), Tolley's Managing Email & Internet Use: A Practical Guide to Employer's Obligations and Employee's Rights, Butterworth-Heinemann
  13. ↑ The Legal Effect of Boilerplate Email Disclaimers
  14. ↑ "Spare us the e-mail yada-yada", The Economist: 73, April 9, 2011
  15. ↑ Lester Haines (18 May 2001), "The 2001 Daftas Longest Email Disclaimer", The Register
  16. ↑ Lester Haines (18 May 2001), "The Email Disclaimer Awards 2001", The Register
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