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An Analysis Of Email Disclaimers
akintayo writes "Recently more amd more organisations have required email sent from their accounts to contain an attached disclaimer. This disclaimer is supposed to describe the recipient's rights to 'use' that email. This slate article analyzes the legality and impact of one such disclaimer, and finds it somewhat lacking."
Good article, Stupid Companies...
You would think with the big bucks that companies shell out for attorneys they would have come up with something more workable or just not bother if it doesn't actually protect them. But then again, spreading FUD can be effective too I guess...
Even if I knew that tomorrow the world would go to pieces, I would still plant my apple tree. -Martin Luther
I wouldnt trust that message any more than I would trust an executable attachment because for all I know a virus could email itself to me with a message saying "This email is virus free" in the hopes I unplug my brain before running the attachment.
BTW, returning to the topic for a minute, email disclaimers piss me off when they tell me what I can and can't do with an email I received. Er... excuse me but if someone sends an email to me by mistake I will do whatever the fuck I like with it, thank you very much! :P
Sorry, but my karma just ran over your dogma.
I guess its just like illegal to open someone else's 1040 delivered to your mailbox - though USPS made a mistake - you have a moral, legal(?) obligation to put it back in the send to box.
The author makes one unfortunate assumption, IMO. Whether or not such disclaimers make sense is immaterial. If a court finds them binding, they are binding. And remember, judges are just lawyers with state-approved uniforms.
.nosig
Far back in the mists of time, or about 1994 as the more prosaic prefer to call it, I was part of my then employer's Internet Special Interest Group. Amongst other things, we decided the final version of the disclaimer which would be attached to our emails.
We had a rule that anything more than four lines was absolutely unnacceptable. It annoyed the recipients, was too long for most people to read and had only questionable enforcement value anyway. It was a fairly common rule of thumb at the time, but as you say it appears to have been abandoned.
I work at one of the banks in London, and a friend of mine works at a different bank nearby. An email from me sent via my personal account starts 'Fancy lunch?'. The mail from him usually says "Yep - 12ish?" followed by about fifteen lines of utter, unenforcable gibberish. No-one reads it, and if they did there'd be no legal basis for it anyway.
Cheers,
Ian
If the reader of this message is not the intended recipient, you are hereby notified that...the taking of any action in reliance on the information herein is strictly prohibited.
It then tells you:
If you have received this communication in error, please immediately notify the sender and delete this message.
Wouldn't notifying the sender be taking an action based on the information contained therein, and thus be expressly prohibited?
If the reader of this message is not the intended recipient,
Its another example of nonsense int he real world.. of course I *am* the intended recipient of every email I get, otherwise the sender would have sent it to someone else. Of course, you could say that you accidentally sent it to me instead of who you meant to send it to.. but how am I supposed to know that? I don't read minds.
I can guess, but that's hardly going to stand up in court, now is it?
Once I worked at a company that had email addresses that were firstname+last initial. Mine was AndrewB. One of the directors was AndyB.
Yes, you guessd right - I received an email once saying "Andy, do you want this quarters bonus of (several thousand pounds) paid as salary or into your pension?". I was overjoyed.. several thousand pounds in addition to my salary, yes please. I only wondered why they hadn't announced this wonderful new bonus scheme to us in some corporate communication......
I never got the cash, but it was addressed to me, had my name at the top, everything.
However, if you continue to get e-mails that you're not supposed to get and you don't take a pro-active action to stop them, then you are accepting the information that you're being given...
I don't know that I completely agree with that. I get hundreds of messages a day that are filtered to my spam folder. I may or may not ever read or even look at the subjects.
Not everything is analogous to cars. Car analogies rarely work.
Without even reading it, I generally know that the italicized last paragraph is some nonsense regarding either an opt-out list, or privacy statement, or this type of goofy disclaimer junk. So am I bound to the terms if I just don't read the bottom italicized paragraph? Even though I know it may contain a disclaimer?
I would think that I would have to not only read something binding; but agree to it as well before I could actually be bound by it.
Hot Damn! It's the Soggy Bottom Boys!
That's if it wasn't addressed to you, and you open it. If it has your name and address on it, you're perfectly correct to open it; it is legally -your- mail. Email MUST be addressed to you to get to you, unless something gets REALLY screwed up, and you're not going to notice until you open the email, because unlike postal mail, you don't usually see the To: address until you open it.
Furthermore, email isn't like a physical letter; it doesn't remain sealed, you can't tell if it has been read, etc. People with the same street number and similar sounding roads get their mail delivered to me all the time; I toss it back in my mailbox. They probably can't even tell it was misdelivered, unless they were expecting it on a specific date.
Everyone has known for years the disclaimers are unenforceable; you can't enforce something you haven't agreed to or signed, period. What's to stop me from putting "You will give me $500 if you read this email" at the bottom of every email? We're talking basic contractual law here, folks.
Please help metamoderate.
Quite wrong, actually. The United States Postal Service has special laws protecting its operations. One of them is that it is a felony to interfere with the delivery of mail once it has entered the postal system, which is in effect until a letter or parcel arrives at its intended recipient or is returned to the sender. This is, however, not the case with email. A communication by email has roughly the same legal protection as shouting across a room.
As the author of TFA points out, a business that actually wants to protect its communications ought to use encryption and digital signatures.
Our intelligent designer has never created an animal that we couldn't improve by strapping a bomb to it.
In reading the above comments, I'm somewhat surprised that so few people understand why the text is there at the bottom of the e-mail, let alone that it may actually have some significance or importance.
The disclaimer in the e-mail, the one on a fax, the EULA or ToS or whatever other contractual language you see is all there because of prospective lawyering. It's defensive. The idea is that if the e-mail or fax contains sensitive information and gets to a party who might otherwise misuse it, the originator has notified the party of the proper procedures for disposing of the document. If the party does not, the originator may be able to sustain a legal claim based on the disclaimer. Yes, the party never consented to it BUT the party was put on notice of what they should do. So long as it's not overly burdensome or crazy, it should hold.
I do agree, some of the language gets out of control and some people take it to an absurd end BUT the disclaimer can be important in the right circumstances.
And for good measure, my favorite lawyer joke:
Q: What do you call 1000 lawyers at the bottom of the sea?
A: A good start!
Its another example of nonsense int he real world.. of course I *am* the intended recipient of every email I get, otherwise the sender would have sent it to someone else. Of course, you could say that you accidentally sent it to me instead of who you meant to send it to.. but how am I supposed to know that? I don't read minds.
I can guess, but that's hardly going to stand up in court, now is it?
Well, here's what I normally see.. Some moron at a bank or law office or whatever forwards a lame joke to like 20 of their buddies, with full legal disclaimer attached. The 20 recipients then go on to forward it to 1000 aol accounts and everyone else in their address books, and somewhere down the line a "friend" that I haven't talked to in 4 years but has me in his address book forwards it along to me and everyone else in his address book. I now have a lame joke about 6 generations removed from the original sender but the full disclaimer about how I'm not supposed to read the email still attached. Funny thing is, the disclaimer is at the BOTTOM of the email.. Tell me how I am supposed to UNREAD the lame joke after I see the disclaimer...
Today I didn't even have to use my AK; I got to say it was a good day -- Icecube
The purpose of the message is to "use" the people to whom it has been sent. This clearly shows the solicitation of services, and as such gives permission to bill the sender for my time spent reading it.
No addressee should forward, print, copy, or otherwise reproduce this message in any manner that would allow it to be viewed by any individual not originally listed as a recipient.
I may do whatever I like with the message as long as I act in a role not associated with any of the addresses in the "To" and "CC" lines.
Actually, email has fewer legal protections than shouting across a room. Hate slogans, racial slurs, sexual comments if shouted can constitute verbal assault and/or sexual harrasment. Doing so in a private email could get you fired from your job, but it won't get you hauled off to a police station.
This is not a sig.
But I doubt that these would hold up in court, and have even argued that they may make you more vulnerable legally.
Prime numbers are exactly what Alan Greenspan says they are -S. Minsky
(ok, six, with GPG)
You want to be almost absolutely sure your intended recipient is the only one who sees your message?
This legal shit reminds me of a package of peanuts I got yesterday at the supermarket:
"This product was processed in a facility that processes peanuts".
This proves we need lawyers like female fish need bicycles....
>If you have received this communication in error, please immediately notify the sender and delete this message.
Wouldn't notifying the sender be taking an action based on the information contained therein, and thus be expressly prohibited?
I get a laugh out of them making it my responsiblity to make sure the sender didn't type the wrong address. If I'm not the intended recipient, then how did I get it? If the To: header isn't necessarily the intended recipient, then how am I supposed to know who is and that it isn't me? If it's so important, why aren't you being more careful who you send it to?
People's desire to believe they are right is much stronger than their desire to be right.
The fact that this Slashdot story has generated so much interest and misinformed commentary (which has, as of this moment, received enough misinformed mod points to be rated "5, Interesting") indicates that these disclaimers are not only *not* superfluous, but rather continue to be necessary and perhaps even need to be *strengthened.*
The warning that something may be legally privileged and/or confidential is intended for the recipient, not someone who intercepts the message. If the content is legally privileged or confidential, that privilege or confidentiality may be considered as being *waived* in many jurisdictions if the intended receipient shares the message with others, perhaps even including other family members.
As far as someone reading the message not being the intended recipient, there are laws such as the Electronic Communications Privacy Act of 1986 that make the unauthorized interception of many electronic communications by individuals and/or the disseminiation of information gained by such interception a criminal act. These laws do not seem to be well-known to readers of Slashdot. The notice that use or disseminiation of the information in an email that you intercepted is prohibited is not intended to warn someone to whom the message has been forwarded. Rather, it is a clear warning to anyone who intercepts such a message without authorization, including nosy ISP sysadmins, of possible liability and the intent to pursue such liability on the part of the sender.
Finally, the request that the recipient notify the sender and delete the message if the message was received in error is merely a request that the recipient engage in common courtesy. If you intended to send a message to someone and put the wrong email address on it by mistake, wouldn't you want the actual recipient to do this as a favor to you? How else would you know it didn't get to the intended recipient until it was too late?