E-Mail Disclaimers

Most individuals now commonly place email signature lines at the end of their email messages. These typically contain the sender’s contact information for the sender and may contain marketing information such as an organization’s logo, slogan or URL. Most also contain some sort of confidentiality notice or disclaimer.

The use of disclaimers likely originated from those used on fax cover pages. Of course, one important distinction is that the ones found on fax cover pages would typically be seen before the attached document, in contrast to email disclaimers which are almost universally appended to the end of a message and consequently not seen until after a message has been read.

An email disclaimer may state that the message is the property of the organization. If the organization’s computer system is used to transmit the message and manage the email system then that’s probably a true statement. Such a statement may not be of much practical benefit with respect to the third party recipients but could be of use to support an argument that the user had notice that their email messages were the property of organization, who could view them from time to time and/or refuse to provide copies if the individual eventually leaves the organization.
An email disclaimer may state that the information contained in the message “may be” confidential and intended only for the use of the addressee. Sending a message with such a provision (particularly if appended to the end of an email message) to a third party that is not otherwise bound by a confidentiality obligation is not likely to create any enforceable obligation upon the recipient. On the other hand, the inclusion of a statement identifying the message as confidential may be very important if the sender’s and recipient’s respective organizations are party to a confidentiality agreement which requires confidential information to be designated as such. However, even in such cases, the use of the word “may” could create problems.

Email disclaimers used by lawyers typically contain a statement that the message “may be” legally privileged. The intent is likely to prevent the sender from accidentally waiving any rights they may have. However, the inclusion of the word “may” makes such a statement vague and if contained on every single email sent by a particular lawyer then it may be questionable whether they would be of much value in supporting an argument for privilege. If they are instead only selectively added to certain messages, particularly without the “may be” component and if placed at the start of a message, then they may be of better use for such purposes. Of course their presence on emails, if actually read by the recipient, may also be helpful in discouraging further dissemination by the recipient.

Some email disclaimers contain an explicit prohibition on certain actions being taken by the recipient. Such a provision may prohibit a recipient from forwarding, printing, copying or otherwise reproducing the message in a manner that would allow it to be viewed by someone other than any individual originally listed as a recipient. Other than the potential enforceability problem, such an obligation could hamper a legitimate action that needs to be taken in response to the information contained in the message.

Finally, some email disclaimers contain certain obligations that purport to bind any person who receives the email in error. They may instruct such a recipient that they “should” immediately notify the sender and then delete the message and/or may state that any use of, reliance on or further dissemination of the message is prohibited. Such provisions are likely not to constitute anything more than a request.

Interestingly, spammers are increasingly including such disclaimers in their emails. However, the purpose is very different. As various organizations and individuals are increasingly using filters to block unsolicited commercial emails, the inclusion of such disclaimers is intended to help make their spam messages resemble legitimate emails and bypass the filters.

Note: The above appeared as a Bits & Bytes article published by Law Times on October 18, 2004.