The bottom line on email
When email disclaimers first appeared, many years ago, I thought they would be a passing fad, but with each year they instead grow more elaborate and contrived. Do you have the right legal information on the bottom of your email?
How often do you get emails with disclaimer notices attached to the footer which read something like this: "This email is confidential, may be legally privileged, and is for the intended recipient only. Access, disclosure, copying, distribution, or reliance on any of it by anyone else is prohibited and may be a criminal offence. If you are not the intended recipient,...."
That's just an abbreviated sample. Some go on for paragraphs and include notices saying they are not responsible for any viruses it contains, that the statements enclosed in it are the views of the individual only and do not in any way represent the company and so on. Some regulated industries do have a legal requirement to include certain very specific notices on the footer of emails, but those are few and far between. Do disclaimers actually do any good, or do they just annoy the people you mail and make you look like jobsworths and bureaucrats?
Most disclaimers say the mail is for the intended recipient only. It could be argued that this immediately neutralises the disclaimer because email isn't like a traditional letter. It doesn't get pushed into the wrong letterbox. If I've received it then it is because I am, according to the address written on it, the intended recipient. How am I supposed to know any different? Yes, people can hack into mailboxes, but that is already covered by legislation such as the Computer Misuse Act and you don't need to claim that protection in a disclaimer. It is also nonsensical that such a statement is placed at the end of the mail, and by the time you reach it you have already read the information it tries to protect.
What about the claim that information is confidential and legally privileged? In many companies, such boilerplate is routinely added to all mails, even those which are obviously not in the least confidential. Blanket usage makes it harder for anyone to know when something really is confidential and dilutes any claim you could have to breach of confidentiality. Legally privileged is itself a specific legal term which refers to privacy rights of the client in communications with his or her lawyer or solicitor. So why do I see this claim of legally privileged in emails from double glazing companies?
The claim that disclosure "may be a criminal offence" is also lacking substance. It is a threat that is often seen but never qualified. Under what act of parliament would it be a criminal offence? By what authority can the sender prohibit me from telling someone about the contents of an email I have received? Some information is protected in the UK under the Official Secrets Act, a Defence Advisory Notice (D-Notice), or a court injunction, but if that was the case, the information shouldn't be in the email in the first place, and surely it would be the sender who is committing the offence, not the recipient.
Many disclaimers deny all responsibility for viruses, bad advice, and so on? One legal website likens these to waivers you might be asked to sign in the event of your death when you go bungee jumping. Whether you've willingly signed it or not, that waiver won't stand up in court. The disclaimer is, in effect, an attempt to impose a contractual obligation upon the recipient of an email and is unenforceable. Within the European Union, an EC directive instructs the courts to strike out any unreasonable contractual obligation on a consumer if the consumer has not freely negotiated it. Does anyone know of any court case anywhere where a boilerplate email disclaimer has proved to provide any sort of legal protection to the sender of the email? I have yet to find one, not even in the litigation-obsessed USA.
A reputable UK law site states "There is no legal authority on the value of these notices in email communications". So why do so many people feel the need to add these tortuous statements to the bottom of their emails? It appears that the vast majority of people do it because everyone else does it so they figure it must be needed. It also seems that a lot of people use it because it sounds really officious and gives them feelings of importance and grandeur. I suspect that they are mostly written by people in marketing or IT, who want to impress their bosses, and I guess some of those people think that it really does give them some sort of bullet-proof vest against negligence claims.
If you really think your business needs a legal statement on the bottom of emails, please hire a qualified solicitor to advise you and to write it for your specific needs. You shouldn't be trying to make it up yourself.
Now whilst people are quick to add questionable disclaimers to their email, they often miss out on some of the obligatory information. If you are a limited company or a limited liability partnership, UK and EU law requires you to include statutory information on your letterhead, your order forms, and your written correspondence with customers, including email correspondence. The information required is your company's registered name, registration number, place of registration, and registered office address. This information must also be available on your company website. In addition, the website should include the name of any trade bodies or professional associations that the business is part of, and your VAT number, even if the website is not being used for e-commerce transactions.
26th February 2014
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