Consulting Journal: Techniques

Techniques: Email disclaimers

by David Blakey

Do you need email disclaimers? And what protection do they give you?

[Monday 4 March 2002]

Many companies add disclaimers to the bottom of their outgoing emails. Some consulting practices do it, too. Before you add a disclaimer to your outgoing emails, you should consider whether you need one and whether you need one on all your emails.

Examples

Here are some examples of disclaimers from the bottom of email messages.

The contents of this email are confidential to the ordinary user of the email address to which it was addressed and may also be privileged.

This is interesting. The disclaimer uses the phrase ‘the ordinary user’. This means whoever would normally use that email address. If several people used the same email address, then they would all be entitled to read the contents of the email message. Control of the people who can ordinarily use an email address lies with the recipient. So, if you send an email to me at djb@blakeyconsulting.com, and I have decided that a number of other people can read the email sent to this address, then they will be entitled to read any email message that you send to me. You could use the format ‘David Blakey ’. But wouldn't you then have to add a clause about the named person and then say that, if there was no named person, then the ordinary user of the email address would apply? It's all getting too messy and too legalistic.
Added to this, say that the email was accidentally sent to the wrong email address, but that it was sent to a valid email address. Say that you intended it for someone else entirely, but that you sent it to me. Well, it was addressed to me, so I'm entitled to read it. Again, if you wanted to add caveats to cover yourself if you send an email to the wrong email address, then your disclaimer starts to get long and messy.

If the email was forwarded from the correct person to another person in the same organization, then that new person is not entitled to read it. So if you have an email message that is intended for your lawyer and you address it wrongly so that it goes to someone else, then that person is intended to the contents of the message. But, if you send that message correctly to your lawyer and your lawyer wants someone else in the firm to give an opinion, the message cannot be passed to this other person.

This part of the disclaimer is sometimes phrased differently.

Here's another example.

The information in this electronic mail message is sender's business confidential and may be legally privileged. It is intended solely for the addressee(s). Access to this Internet electronic mail message by anyone else is unauthorized. If you are not the intended recipient, any disclosure, copying, distribution or any action taken or omitted to be taken in reliance on it is prohibited and may be unlawful.

In my view, the recipient has no legal obligation to the sender. The line that starts ‘If you are not the addressee ...’ is wonderful. The sender has sent the information to the wrong person and is now, retrospectively, attempting to impose conditions on the recipient. In some countries, if an email of this kind was sent to a Government agency or department, that agency or department could be obliged to reveal the contents of the email publicly if requested. There is the - remote - possibility that the content of the email may be copyright, but this clause is almost as funny as the proposals I read that are stamped "commercial in confidence".

If you have received this email in error please email the author by replying to this message and delete the material from your computer.

The accepted courteous method is to simply delete the email and take no further action, but this sender clearly makes this mistake so often that they need to track their mislaid emails. Would you like to state your fallibility so openly? How would you feel if you read this at the bottom of an email message from me? Would you be reassured that I have done everything that I can to protect the confidentiality of my message to you?

While reasonable precautions have been taken to ensure no viruses are present in this email, you are responsible for carrying out your own virus checks and [the company] does not accept responsibility for any loss or damage thereby arising.

This is untested in law, to the best of my knowledge. This statement seems to be "flannel".

The views of the author may not necessarily reflect those of [the company]. At present the integrity of email across the Internet cannot be guaranteed and messages sent via this medium are potentially at risk.

This clause has been borrowed from publishers. Publishers - in whatever form - may be liable at law for the content of their publications. So I can sue both the writer of an article and the publisher of the magazine if they make libellous statements about me. I do not believe that this company sees itself as a publisher - unless its emails are bulk-mailed newsletters. The clause seems irrelevant in these circumstances.

If the clause intends to state that the company will not be liable for any unauthorized or even malicious emails sent out by its employees using its resources, then the clause should state that, although, again, I do not believe that this will remove liability from the company.

If the clause intends to state that the company will not be liable for emails which purport to come from it, although they actually do not, then the clause should state this. I believe that it is sustainable under law.

All liability is excluded to the extent permitted by law for any claims arising as a result of the use of this medium to transmit information by or to [the company].

How can I object to anyone saying that they have no duties except those imposed by law? It's unethical and it's irresponsible, but it's legal. My question is: why would the company want to publicize this stance?

Conclusions

You've seen some examples. Now it's up to you to draw your own conclusions.

You should consider that email messages are difficult to cover using a QA process. It is relatively easy to QA attachments - such as Word documents - because you can send them to the checker. With emails, however, the email address may not be fully visible. It might just say ‘David Blakey’ without showing the email address.
There is a wide range of people who might read your disclaimer. These will range from the person who will criticize your disclaimer for not being tight enough to the person who will ask whether there is some hidden reason for adding a disclaimer.
The disclaimer might be reassuring when it is added to a message that contains confidential information but might be worrying when it is added to a weekly newsletter sent out to many people.

So you might decide that a sensibly worded disclaimer would be useful to reassure people when you send them confidential information. If you decide this, then you should be able to add the disclaimer when you want and leave it off for all other email messages.

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