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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
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