Email Disclaimer Enforceable?
If you’ve received email from an attorney in the last five years, you’ve probably seen some version of a boilerplate warning/disclaimer in the message footer, indicating that the message may be privileged (or in some cases, asserting that the message is privileged!) and telling the receiver to destroy and/or return all copies if they are not the proper recipient. In the last couple of years, almost everyone has also added a statement to the effect that this email does not contain illegal tax advice (or if it does contain such advice, you shouldn’t use it!) Cumulatively, I’m sure we’ve used gigabytes if not terabytes of bandwidth attaching this text to every email sent.
My question to the world: is anyone aware of such an email disclaimer ever being enforced or held enforceable?
Simon Jun 27
IANAL – but that one is easy.
In UK law at least you can’t force a third party into a contract. I assume other jurisdictions are similar.
So the boilerplate is totally meaningless, other than where it reminds you of obligations you may already have under existing laws.
Just as if someone posted an unwanted letter into your house with a note saying “you may not recycle this paper”, you can safely ignore it and recycle the paper.
Personally the one that annoys me are those saying “we scanned this email for viruses”, which is equally useless, and creates a whole new scope for social engineering attacks, with viruses claiming to have been scanned.
Kevin Mark Jun 27
Would the recent 4th amendment privacy ruling on email be involved in these email disclaimers?
adam Jun 27
It’s unlikely that the Fourth Amendment would have much relevance here. The issue is really whether a “shrink-wrap” or “click-wrap” agreement could ever be enforced when the recipient never even requested the email in the first place. The third party issue mentioned by Simon may also not be relevant — here, the sender is seeking to bind a “second party” — i.e., the recipient — who ostensibly has a choice whether to open the message or not, rather than an unrelated third party.
I admit it’s all pretty flimsy, though.
Russell Coker Jun 27
http://etbe.coker.com.au/2006/12/29/email-disclaimers/
At the above URL I blogged about my reaction to this issue. I made my mail servers give a SMTP protocol disclaimer that voids any legalistic sig in a message I receive. So far no-one has objected.
I think that probably both the sig disclaimer and my SMTP protocol disclaimer would fail to be upheld by a court.
Brian Jun 29
Most corporate sites require that employees read and right an IS/IT requirements and policies form. Most of the ones that I have seen state that any and all data created on company systems or software is property of the corporation. Some go so far as to state that email that is received by the companies systems from external sources can be blocked or reviewed at anytime by the IS /IT department if deemed necessary.
This puts the company withing their rights to review any and all email sent and received by the system. Making legal disclaimers useless in such a situation
However, a disclaimer being used on an email being sent from user to user would more than likely be able to be enforced by law. IF, and only IF, the user places the disclaimer before the body of the message and there is a mechanism in place to prevent users from reading the email in question if the recipient does not agree to the disclaimer. Similar to a End User License Agreement.
John Jan 19
These are implemented to help you remove yourself from liability. There are some companies focusing specifically on email disclaimers and they will probably be able to provide more information on the legalities of email communications.