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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."
I consider a 100+ word message at the bottom of an email spam. Most emails are a sentence or two. What the hell do I need another 100+ words tacked on the end for? Shouldn't we have some sort of mandate similar to Usenet signatures? That said...
:)
It may be legally privileged and/or confidential and is intended only for the use of the addressee(s).
If the reader of this message is not the intended recipient, you are hereby notified that any unauthorized disclosure, dissemination, distribution, copying or the taking of any action in reliance on the information herein is strictly prohibited.
If you have received this communication in error, please immediately notify the sender and delete this message.
Now, while the lawyer notes that they are only asking you to do these things I see another flaw... If the document wasn't intended for the use by the addressee the rest of the notice is moot. It's up to the sender to guarantee that the message is delivered to the correct John.Doe@yahoo.com. I don't see how I would have to follow any of that if a) I didn't sign it and b) I am not the person they intended anyway.
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.
If I am sent it incorrectly I am not allowed to look at it anyway. It doesn't make sense.
Then again IANAL
One of the reasons a lot of companies automatically put the disclaimers / nonsense on the bottom of the email is that it provides them with somewhat of a means of liability protection from information that was sent or processed from their systems, lets not also forget the confidentiality or rather the breaches of, that email allow to happen so frequently and readily.
Lastly, later if heaven forbid (!) a scandal hits the office involving a lower or sometimes high level employee, emails (which like any segment of a well defined network) may be called up from archives for an investigation internally or externally in a court of law. Stating the MULA on the bottom of correspondence, while generally accepted in people_to_people terms as fodder, is actually a wise move for a corporation to show its partners, employees, and potential revenue sources the fact that they place internal memos and all communications in the same manner that they would (as any entity with a sense of self preservation) deem a legal document.
Let's keep in mind that patents are in place to keep lawyers employed and keep them litigating. -CatGrep
...then I will consider it an unsolicited gift from you, with which I will do whatever I want.
IOW, tacking a too-bad-if-you-looked legal threat to the end of your email does not establish any sort of contract between us.
I've seen this mostly as a way to comply with HIPAA. HIPAA, governing confidentiality of medical information, doesn't mean you actually have to be secure, just that you have to take reasonable security measures. Many nonprofits have taken this to mean they can send whatever they want via e-mail as long as they tack a disclaimer onto the end. Of course, it's completely ridiculous, but everyone else is doing it, so why shouldn't we jump off that cliff too?
The interesting thing is that the email comes to you generally unsolicited. If the sender accidentally delivers it to the wrong address, then it's unsolicited. You can't force people to agree to a contract - especially by sending them an email with legal crap tacked onto the end.
If you have any reason to protect the contents of the email, use encryption (for the eavesdropper), use some verification (for the unintended recipient), and make your intended recipient sign an NDA before you send them emails with sensitive info in them.
I'll be forwarding this article to my boss, who has recently added a similar statement to his sig.
... one can still gripe about the 'confidentiality' of an e-mail and have a case (albeit limited).
Not too long ago I was having a bit of an e-mail battle with a professor and as many of what he said was flat out wrong, I put up a small webpage with the unabridged text of the e-mails for other students in the class to read so they would be aware of the problems I had raised which concerned them all.
The professor later threatened to sue me for "libel, slander and defamation" because of the "publication of our confidential and private e-mail conversations", even though there was no disclaimer or even an assumption of privacy.
Thankfully, given a number of illegal things he had done in the e-mails (IE blowing off FERPA), any such case would have been thrown out quite quickly.
When I told this story to my father, he told me a quote he heard long ago:
"Never put something in a letter that you don't want the other guy's lawyer holding up in court"
The moral of this story: Disclaimer or not, don't write anything in an e-mail, letter, diary, word document that you don't want getting out.
Help Brendan pay off his student loans
This is especially true considering the enforceability of these disclaimers, or rather lack thereof, when the recipient is subject to a different jurisdiction.
A few weeks ago I had to personally deal with email disclaimers. An acquaintance of mine had sent an email containing his company's email footer to multiple recipients at the same site (a big company) which neither of them ever received. Turns out, the spam filter caught the email and dropped it because of its low content-to-repetition (read garbage) ratio.
May just be my employer's advertising blocking software, but this was the hardest to read article I've seen in a long time. Text on top of text for 3/4ths of the article (the length of the left side menu bar) in IE 6.0 ...
But your software is correct to make things difficult, it was an advert. This is more of M$'s attack on email and an attempt to push their new and improved versions. This statement is key:
If Time Inc. wants to keep its communications safe, it should invest in some sort of encryption software that allows privileged readers to open the mail but prevents them from forwarding, printing, or otherwise duplicating it. Microsoft, which publishes Slate, even makes a product for such occasions.
Let's look at all the stones thrown:
The answer, of course, is to buy some new spiffy new M$ junk to replace your old spiffy M$ junk and forgo traditional email. Some solution.
You have to love an end to end M$ solution. Served on IIS/5.0 by a M$ owned company and read by someone using IE. I had no trouble reading the article using KDE 3.2, despite blocking 25% of the obvious adverts. I don't think I'd have a problem printing or redistributing it either. I'm sorry to hear that your employer's choice of browser won't even render the junk. Billy Gates promises to make sure you can't print or share it either, even if you could read it. So the clueless inflict suffering.
Next time, just ssh into your home box and use lynx or links. Lynx rendered just fine and I know that lynx does better. Beware your employer's keyloggers and those installed by trojans, however, and use a disposable box with different passwords than normal.
Friends don't help friends install M$ junk.
That if one ever goes to court, it will be as good as a waiver of responsibility, (ie, amusment park, ride at your own risk). All lawyers want you to have them and NOT A SINGLE ONE has ever stood up in court in the US. They are a great supply of emergency toilet paper, but completely useless otherwise.
Professional Politicians are not the solution, they ARE the problem.
Although most email disclaimers are annoying at the best of times, they can provide assurances to shareholders, management and such.
Most internal correspondence dealing with company secrets and assests have similar disclaimers ranging from the simple "confidential" to multi-line legalese. Consider finding a document with truly important information in a dumpster.
Legally the document could be read by anyone as it's in a public place. If there is no disclaimer the information could be redistributed as the recipient has no idea if the information is confidential or not.
However, if the document was labeled confidential, copyrighted , whatnot, could taint anyone who redistrbutes or uses it, such as competitors.
The same analogy could be applied to email messages with disclaimers. Would it hold up in court or lessen the damage to the company that accidently sent it to the wrong party? Probably not. But it does show that the company does have some inkling, no matter how small, of classifying information assets.
I'm currently taking a course in business law. These disclaimers are theoretically a contract, so let's examine them to see if they are valid:
Contracts have four requirements to be valid:
- Agreement
- Consideration
- Capacity
- Legality
Agreement: Even if you have a previous business relationship with the sender, this "disclaimer" would constiture new terms, and thus be considered terms for a new contract. The recipient is under no obligation to accept.Consideration: The sender is offering nothing of value in return for acceptance. Courts usually don't look fondly upon one-sided contracts.
Capacity: The recipient may have contractual capacity (age, mental competance, etc), or they may not. In the case of an email transmission, capacity of both parties is unknown.
Legality: The terms of the contract must be legal. Courts usually frown on contracts that reduce the constitutional rights of the offeree, especially if the offeror wields an undue amount of power.
Summary: Take this "contract" before a Judge and it will be laughed out of court.
Disclaimer: IANAL
You say that a disclaimer may make it impossible for people to claim "I didnt know" in court.
:
...) but these result from real, signed contracts, NOT from some email-disclaimers.
But the main problem with these disclaimers is that they try to add restrictions on the way you may use the email.
And they cannot do this.
And when the disclaimer is essentially b*llsh*t, people CAN claim in court : "Well, there where these 41 unenforcable claims, how could I know that the 42th was enforcable?"
You may be right over point a), but this applies only to rights you already have over your email and the ONLY right you have over an (unsolicited) email is copyright (and then again, not necessarly in all countries), so the only disclaimer you can add is
"Copyright 2004 by M.E., reproduction in whole or in part (including forwarding or quoting) of this message without permission is prohibited, unless the copyright laws of your country explicitly allow it."
Of course, if the email isnt unsolicited, stronger rights may exist (trade secrets, NDA,
IANAL; and you'll be foolish to use my disclaimer, it's just an illustration.
I have discovered a truly remarkable proof for my post which this sig is too small to contain.