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]

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.[4][5]

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.[6][7]

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.[8]

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.[9][10]

Effectiveness of disclaimers

The Economist published an article asserting that disclaimers are presented largely as a result of imitation and habit, that people have long stopped paying attention to disclaimers, and suggested that they may not be legally enforceable.[11]

In the United States, the overuse of boilerplate disclaimers by law firms has been criticized as potentially rendering the disclaimers ineffective.[12] With little case law addressing email disclaimers, concerns remain that the use of a disclaimer provides little or no benefit to an attorney other person who misdirects an email that contains privileged or confidential information.[13] If the recipient of a misdirected email is not bound to a confidentiality agreement, the inclusion of a disclaimer has no binding effect upon that person.[14][15]

In the EU, there is a directive that instructs courts to strike unreasonable provisions of consumer contracts that have not been freely negotiated by the consumer.[11]

Length and other awards

The Register conducted a survey in 2001 and found that UBS Warburg had the longest disclaimer — 1,081 words.[16] Other categories in their Email Disclaimer Awards included the Most Incomprehensible Disclaimer and the Most PC Disclaimer.[17]

References
  1. Rand Morimoto (2004), "Using Email Disclaimers", Microsoft Exchange server 2003 unleashed, ISBN 9780672325816
  2. A Lampert; R Dale; C Paris (2009), Segmenting email message text into zones
  3. Alan Davidson (2003), "Email Disclaimers", Plaintiff (56)
  4. Theresa Heyd (2008), Email hoaxes: form, function, genre ecology, ISBN 978-9027254184
  5. 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)
  6. Gillian Black (18 November 2009), Formation of Contract: Consensus or Intention? (PDF), archived from the original (PDF) on 14 September 2012, retrieved 22 September 2010
  7. Lord Hodge, OPINION OF LORD HODGE in the cause BAILLIE ESTATES LIMITED (Pursuer) against DU PONT (UK) LIMITED (Defender)
  8. Jack Shafer (June 1, 2004), "E-mail Confidential", Slate
  9. Robert F. Smallwood (2008), Taming the Email Tiger: Email Management for Compliance, Governance and Litigation, ISBN 9780615195759
  10. Lynda A. C. Macdonald (2004), Tolley's Managing Email & Internet Use: A Practical Guide to Employer's Obligations and Employee's Rights, Butterworth-Heinemann, ISBN 9780754524434
  11. "Spare us the e-mail yada-yada". The Economist. 7 April 2011. Retrieved 21 January 2020.
  12. Rubin, Karen E. (November 2009). "Can E-Mail Disclaimers Help Avoid a Privilege Waiver". Ohio Lawyer. 23: 9.
  13. Lidstone, Herrick K. (2015). "Email Disclaimers A Worthwhile Endeavor or a Waste of Electronic Ink?". SSRN Electronic Journal. doi:10.2139/ssrn.2656466.
  14. Fry, Erika (15 October 2013). "The short history of email disclaimers". Fortune. Retrieved 21 January 2020.
  15. "Email Disclaimers: Legal Effect in American Courts".
  16. Lester Haines (18 May 2001), "The 2001 Daftas Longest Email Disclaimer", The Register
  17. Lester Haines (18 May 2001), "The Email Disclaimer Awards 2001", The Register
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