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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
Of course, it was at the bottom of the e-mail.
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
...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.
about this here. And it also has a collection of stupid disclaimers ..
In the UK received mail is the property of the receiver, to do with what they like...
Therefore you can forward emailed confidential information as much as you like!
Note of course that true email goes through SMTP across the net, not just through some companies mail server.
IMPORTANT: This email is intended for the use of the individual addressee(s) named above and may contain information that is confidential, privileged or unsuitable for overly sensitive persons with low self-esteem, no sense of humour or irrational religious beliefs. If you are not the intended recipient, any dissemination, distribution or copying of this email is not authorised (either explicitly or implicitly) and constitutes an irritating social faux pas. Unless the word absquatulation has been used in its correct context somewhere other than in this warning, it does not have any legal or grammatical use and may be ignored. No animals were harmed in the transmission of this email, although the yorkshire terrier next door is living on borrowed time, let me tell you. Those of you with an overwhelming fear of the unknown will be gratified to learn that there is no hidden message revealed by reading this warning backwards, so just ignore that Alert Notice from Microsoft: However, by pouring a complete circle of salt around yourself and your computer you can ensure that no harm befalls you and your pets. If you have received this email in error, please add some nutmeg and egg whites and place it in a warm oven for 40 minutes. Whisk briefly and let it stand for 2 hours before icing.
(Lifted from http://www.goldmark.org/jeff/stupid-disclaimers/)
blah
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?
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.
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
Because these warnings are sent with every e-mail and annoyingly to many mailing lists they are legally untenable. In order for these warnings to have real meaning they should only be used on mail that is actually private and meant for one individual or organization. When you send an e-mail to a mailing list, for instance, you should know that most of them are archived and certainly your e-mail will have a long life in the google archives.
I don't imagine that you will have a good outcome in court when you ask the judge to sanction one reader who violated the warning. Your honor, here are ten e-mails that the same person sent to mailing lists with the same warning, how can I take the warning seriously when the sender doesn't?
I just got a spam message that had this at the bottom:
This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If you have received this message in error, you are hereby notified that we do not consent to any reading, dissemination, distribution or copying of this message. If you have received this communication in error, please notify the sender immediately and destroy the transmitted information.
Of course, all the header info is forged, so now I'm freaking out since I can't get in touch with them to let them know that this sensitive penis creme enlargement trade secret information may have fallen into the wrong hands!
The goatse.cx lawyer has informed us that we need a warning! So.. if you are under the age of 18 or find this photograph offensive, please don't look at it. Thank you!
Think about it. No one can make you legally bound for something they just send to you. A legal status such as copyright can be infered, but not much else. This is a typical legal tactic of bullying without much more then impressive verbage to stand behind.
Anyone ever estimate how much space these things are wasting on servers all over the US (I'm assuming this is unique to the US)?
Putting a disclaimer at the bottom of a message is utterly ridiculous. It is like posting a biuig notice on the side of a building, then at the bottom adding "This message is (c) Foobar, anyone reading it agress to pay me 5 million dollars". You have to stipulate terms of a license *before* the licensed product, not after.
To realy get them, why not add the following reply to your SMTP HELO response on your mailserver: "Any email sent to this system is considered the personal property of Foobar, and all rights and copyrights associated with said email are automatically assigned to Foobar. Your use of this system constitutes acceptance of this agreement."
It would be just as ridiculous as the email signatures.
Here in Texas whenever you send an email to a state or local government official, it automatically constitutes a public record, regardless of any disclaimers attached, and is subject to the state's open records availablility and record retention laws.
... 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
DISCLAIMER:
This email will self destruct your computer in 5 seconds!
5...
4...
3...
2...
1...
If not using Outlook, Please click on attachment "EvilVirus.vbs"
ATTENTION: If your name is not John P. Smith, by reading this message you agree to shove a pen in your eye.
Britany Spears-"Opps, I sent it again."
Michael Jackson-"This message is inteneded for receipients 12 and under. Otherwise please disregard without reading."
George W. Bush -"Any email from Iraq will be considered a WMD, weapon of mass dissemination, and will be immediately acted upon with extreme prejudice"
Tony Blair-"Whatever George said."
James Earl Jones-"Will do any film for $9999.95."
George Lucas-"Any message sent from this server can be freely used as a plot device in an upcoming special effects driven feature without any additional payment. Besides, it may make Episode III better." Bill Clinton-"I never said that." Bill Gates -"Cross us an we will crush you, unless it gets press, which nets you an X-Box for the crushing."
Yeah, I guess I'm funny like that.
I remember a while back the register presenting articles similar to this:
longest email disclaimer
Most incomprehensible
Original article
(All obligingly and typically repeated in full..!)
------
beware he who would deny you access to information, for in his mind he dreams himself your master
Here is a disclaimer for all e-mail that my company sends out:
NOTICE: This communication and any files transmitted with it ("communication") may contain privileged or other confidential information. This communication is intended solely for the individual or entity to whom it is addressed. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use this communication. Also, please indicate to the sender that you have received this communication in error, and then delete this communication and any copies. Thank you.
And for some reason our admins are complaining about the amount of space that our e-mail servers consume....
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.
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.
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.
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!
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.
The author of this email states that any "disclaimer" that appears below this sentence was added without his consent.
"Ain't no right way to do a wrong thing."
Under British, a contract requires offer, acceptance, intent to create legal relations, and consideration. An e-mail disclaimer meets none of those.
This is an email. It is the electronic equivalent of a POSTCARD. It has been split up into hundreds or thousands packets and blasted throughout the globe. Logged, scanned, filtered, parsed, grepped and heuristically analyzed by countless computers as well as humans. I wear a shirt that says "I read your email." If you for one moment think, believe, hold notion, or otherwise have the slightest inclination that anything you send via email is confidential you are an idiot. If you for one moment think, believe, hold notion, or otherwise have the slightest inclination that anything you send via email is only being read by the intended reciepients you are an idiot. If you have read this far you are an idiot.
(B) + (D) + (B) + (D) = (K) + (&)
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
Thankfully, we're not required to put such a disclaimer on e-mails at my work.
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(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....
Most of the commentary has ignored a few important points:
(a) if there were ever legal action over an email (say, for example, that you described something important in the email, and the person used it elsewhere), the fact that you have a disclaimer makes it _stronger_ evidence in the court, that would make damages and remedies much easier: the defendent would not be able to claim "d'oh, I did not know" or argue some other implied license, etc. Often the disclaimer is just explictly stating what is already implicit: because what's implicit to me is not always considered that by you: which is why we have written contracts to make all the details clear.
(b) on the issue of confidentiality: it _is_ true that there is no confidentiality in unsolicited messages, thus the "disclosure" disclaimer is junk, _however_ there is always copyright in your email, so while the recipient may be able to generally disclose what they obtained, that may not disclose the _actual detail_ of it without violating your copyright.
On point (b) is a good example: a lawyer sends you an unsolicited C&D with a disclaimer: you are actually free to run around and tell people about what happened, but if you actually _reproduce_ the entire C&D itself verbatim, you would probably be violating the copyright in the letter.
Personally, I use disclaimers: because frankly some people are quite free and easy with forwarding emails off to other people when I am addressing a specific question to them, not to a general audience. Of course, I don't write anything that would offend other people, but in some cases, material has been forwarded out of context. There's really not much I can do, but if there ever _was_ a nasty situation, then at least I know that I've bought myself a _little_ insurance with some explicit disclaimer.
I have received numerous email messages with your company standard disclaimer on the bottom. I hereby notify you that to my best knowledge, I have not signed any non-disclosure agreements with you. Therefore I am free to publish, disseminate, discuss, and use the information in said mails as I damn well please.
As a reasonable person, I am willing to find a compromise. If you compensate for my time and trouble, I am willing to send you copies of said emails. Let's say $100 a piece, or $20000 for the whole pile. After that you can make me an offer for a non-disclosure agreement, and if I find the terms agreeable, I may even sign it.
As a courtesy, I will remain relatively quiet about those mails and about this correspondance, for the next seven days. After that, I make no promises.
Yours sincerely
J.Random Luser
In Murphy We Turst
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.