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An Analysis Of Email Disclaimers

Posted by timothy on from the by-reading-this-you-agree-to-send-your-sister dept.

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."

35 of 334 comments (clear)

  1. Limit this crap to four lines... by garcia · · Score: 5, Interesting

    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 :)

    1. Re:Limit this crap to four lines... by mccalli · · Score: 4, Insightful
      Shouldn't we have some sort of mandate similar to Usenet signatures? That said...

      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

    2. Re:Limit this crap to four lines... by Nobody+You+Know · · Score: 5, Insightful
      Actually, if you aren't the intended recipient, the notice itself prohibits you from doing what it requests.

      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?

    3. Re:Limit this crap to four lines... by Saeed+al-Sahaf · · Score: 4, Funny

      You bankers, and your "fancy lunches". Will you be having it on my money, then?

      --
      "Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
    4. Re:Limit this crap to four lines... by haystor · · Score: 5, Funny

      I like the ones that tell you to delete all copies of the message. Is that implicit permission to access their mail servers for deletion?

      --
      t
    5. Re:Limit this crap to four lines... by gbjbaanb · · Score: 4, Insightful

      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.

    6. Re:Limit this crap to four lines... by Gr8Apes · · Score: 4, Interesting

      Email is basically a post card. If you get a post card in the mail, you can legally read it, if it's even legible, as you're not tampering with it.

      If, however, you receive something incorrectly addressed in an envelope, you may not legally open it (in the US anyways). This would be akin to an encrypted (the envelope) email. The mis-addressed recipient would not be able to read it easily, or even practically. The envelope (encryption) is a much stronger enforcement of the "authorized person only may open this mail".

      --
      The cesspool just got a check and balance.
    7. Re:Limit this crap to four lines... by NanoGator · · Score: 4, Funny

      "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. "

      Heh. Not totally related to what you've said, but it reminded me of it. At my previous job, somebody sent an email to my office mate. It was meant for me. He tapped my shoulder and said "Well I think this email was supposed to be for you, but the disclaimer says I cannot show it to anybody that it's not intended for." So I read his disclaimer, and he was right. By forwarding it to me, he'd violate those terms. Heh we had a chuckle at that.

      So how'd it end? Not very excitingly, really. We just used a little common sense, assumed he wouldn't care, and forwarded the message to me anyway.

      --
      "Derp de derp."
    8. Re:Limit this crap to four lines... by Wylfing · · Score: 4, Insightful
      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.

      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.
    9. Re:Limit this crap to four lines... by gcaseye6677 · · Score: 4, Informative

      I asked my lawyer friend about this, and he said the only legal purpose that these disclaimers can really serve is to prevent the sender from accidentally waiving any rights they may hold. For example, attorney client privilege is a very big deal to lawyers. They must be able to communicate in secret with their client. If an email is misdirected and falls into the wrong hands, any information could not be admitted into court as if it were publicly disclosed. Legally, attorney client privilege is still in effect. Of course the accidental recipient would still see it and there wouldn't be much you could do about that, so if something is really confidential, encrypt it. The same thing could apply to trade secrets or any other form of private communication. However, it would be very difficult to take any action against an accidental recipient, regardless of what your disclaimer said, unless you could prove that they acted with malicious intent after receiving the email.

    10. Re:Limit this crap to four lines... by zx75 · · Score: 4, Insightful

      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.
  2. Mail User License Agreement by Clinoti · · Score: 5, Interesting
    There is also the fine line between culpability and fair use once the message is out in the fields, unless the sending method is sent by a secured source to a trusted source, the email is free and wild. With the amount of sniffing and man in the middle attacks primed and waiting in the background on the internet it would be foolish to think otherwise.

    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

    1. Re:Mail User License Agreement by Croaker-bg · · Score: 4, Interesting

      "...unless the sending method is sent by a secured source to a trusted source, the email is free and wild."


      The funny part about all this is that the most prevelant abuse you will see with one of these happy disclaimers at the bottom is an email that an employee has sent to themselves at their AO-hel-L address to work on at home and then forward back to work once it is complete. You can pretty much guaruntee it will be an HR person and it is going to have HIPAA or SarbanesOxley information in it and that no number of disclaimers is going to stop the impending lawsuit if it ends up posted to the web or in some Phishers hands.

    2. Re:Mail User License Agreement by clamantis · · Score: 5, Informative

      As one who negotiates NDAs for a major corporation, I have advised clients that these "disclaimers" are inappropriate in negotiation. You can't dictate the terms of a confidentiality agreement in an e-mail sig, but only in an agreement duly signed by both parties. Even click-and-accept agreements like EULAs are not recognized in some countries, and so we have to insist on signed paper in those cases. (eg: http://articles.corporate.findlaw.com/articles/fil e/00051/005095/title/Subject/topic/Intellectual%20 Property%20Law_Licensing/filename/intellectualprop ertylaw_1_239 ) We do not use disclaimers like this on e-mails, although attorneys advise that their messages should be considered atty-client privilege if marked confidential. And in those cases, they should never be forwarded outside the company. Point is if you're really serious about electronic data getting into the wrong hands, don't use unencrypted e-mail. If you're concerned about improper use by the intended recipient, don't send the info without a non-disclosure agreement.

  3. Dumbest disclaimer? by BabyDave · · Score: 5, Funny

    "If you are not the intended recipient, please delete this message unread"

    Of course, it was at the bottom of the e-mail.

  4. If you have received this message in error... by ebh · · Score: 5, Interesting

    ...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.

    1. Re:If you have received this message in error... by the+pickle · · Score: 4, Informative

      There's already precedent for this in the postal system, at least here in the United States.

      If you receive something unsolicited in the US Mail (which includes something addressed to you by accident, but not addressed to someone else and simply left in the wrong mailbox), you are free to do with it as you wish. The sender cannot compel you to obey any license agreement or follow any restrictions they might wish to place on its use, within the bounds of the law. (That is, you can't go out and beat someone up with a billy club someone sends you in the mail, because that would otherwise violate the law, but you're free to use it as a billy club even if the company who sent it to you says it's a sex toy for cows.)

      There was a great deal of discussion about this back when DigitalConvergence (remember them?) was sending unsolicited CueCats to people and then suing them for taking them apart and hacking them.

      Some info on that situation:

      http://www.beau.lib.la.us/~jmorris/linux/cuecat/
      http://air-soldier.com/~cuecat/
      http://www.xmission.com/~rebling/pub/cuecat.html
      http://www.logorrhea.com/cuecat/mirrors.html

      More on Google; search for "CueCat."

      p

      --
      In Korea, long hair is for old people!
    2. Re:If you have received this message in error... by DonGar · · Score: 4, Informative

      The original purpose of the law was to nix an old scam. Shady companies would ship merchandise to people at random, and them send them a bill.

      Originally, people had the legal obligation to return the goods or to pay for them. The companies would make it so hard to return the goods that it was easier to just pay the bill.

      In response, Congress came up with a reasonable law that just made the problem go away. Amazing.

      --
      plus-good, double-plus-good
  5. There is a much older Ressource ... by Sweetshark · · Score: 5, Informative

    about this here. And it also has a collection of stupid disclaimers ..

  6. stupid disclaimers by colinleroy · · Score: 5, Funny

    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
  7. HIPAA by Anonymous Coward · · Score: 5, Interesting

    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?

  8. It's not only email disclaimers by wiggys · · Score: 4, Insightful
    It's not only email disclaimers which are annoying and stupid (not to mention a waste of bandwidth) - what about those messages which say "This email has been certified virus free by xxxxx"?

    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.

  9. Legal != Sensible by drdanny_orig · · Score: 5, Insightful

    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
    1. Re:Legal != Sensible by FuzzyBad-Mofo · · Score: 4, Interesting

      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

  10. spam too by mabu · · Score: 4, Funny

    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!

  11. Favorite disclaimer: by Henrik+S.+Hansen · · Score: 4, Funny
    Favorite disclaimer:

    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!

  12. What is the legal basis? by brunes69 · · Score: 4, Funny

    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.

  13. Email to govt in Texas becomes public record. by Anonymous Coward · · Score: 5, Informative

    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.

  14. Even with no disclaimer... by DaHat · · Score: 4, Interesting

    ... 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
  15. Mission Impossible by Anonymous Coward · · Score: 4, Funny

    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"

  16. Official Celebrity Disclaimers by platypibri · · Score: 5, Funny

    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.
  17. What if I don't read the entire message? by delcielo · · Score: 4, Insightful

    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!
  18. addressing by SuperBanana · · Score: 4, Insightful
    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.

    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.
  19. My disclaimer by T3kno · · Score: 5, Funny

    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) + (&)
  20. My reply by heikkile · · Score: 4, Funny
    To whom it may concern,

    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