COMMENTARY--What is the true value of those disclaimers added to the end of outgoing e-mails?
What value is the legalese added (usually automatically) to the end of outgoing e-mails? Not something I would spend too long pondering, except that I suggested to our MIS Department that maybe we ought to have this "feature". And so I became involved in a debate over the legal value or otherwise of these lines of text that most of us are used to ignoring.
Disclaimers are typically used to protect an organisation from the content of e-mail (for example, libelous or defamatory comments) or protecting against breaches of confidentiality (by warning that the content of the e-mail is confidential, and that the message is intended only for the addressee). In rare cases a disclaimer warns that the e-mail may contain viruses, and should be checked by the recipient.
A company called EmailDisclaimers.com (in the US) claims "If you are in any doubt as to whether or not you should include a notice, then you should include one"--exactly what I would expect from a Web site specialising in disclaimers! However, the same site states "If you were to be so unlucky to be sued for the contents of an e-mail, it is not certain whether an e-mail disclaimer will protect you from liability in a court of law." Also on this site, Michael Chissick, Head of Internet law at Field Fisher Waterhouse adds "The disclaimers added to the end of e-mails are not legally binding, but it's always good practice to try and disclaim liability".
Under Australian law, defamation applies to e-mails as it does to any other form of media, despite claims that cyberspace should be a realm where information--malicious or otherwise--should flow freely. Litigation is far less common, though. The ability of e-mail to transcend geographic boundaries (and be therefore subject to very different legal regimes) and to be sent anonymously, make it difficult to enforce defamation or libel through legal avenues. However, defamation/libel action can be taken, and an employer is liable for the content of e-mails sent by employees in the course of their employment (individual employees may be liable for libellious
| Norwich Union in the UK paid out £450,000 because of a libellous e-mail sent by one of its employees. |
The most effective means of avoiding legal action is an effective e-mail policy. In addition to preventing or minimising the likelihood of inappropriate e-mail use, the responsibility of the employer can be mitigated to some extent by showing it has acted responsibly, such as demonstrating it has an e-mail policy. This can include lexical scanning tools that scan for specific words or phrases and enforce the e-mail policy, and blocking e-mails that contain inappropriate/offensive language or breach confidentiality.
The potential value of disclaimers in other areas is limited. A statement that a communication is confidential may make the difference between its being treated as confidential or not. This may be ineffective in certain circumstances, such as if it is in small type and liable to be overlooked, or at the end of the message and seen by the recipient after he has read the substantive content. So a disclaimer of this nature should be fairly prominent, and prepended rather than appended (as it is on faxes, where they appear on the cover sheet).
Disclaimers that e-mails may contain viruses are--as anyone in the IT industry can attest--similarly futile. A more professional approach in dealing with customers is to scan all outgoing mail, to ensure that the recipient doesn't receive any viruses (rather than warning that they might).
So the bottom line, no pun intended, is that e-mail disclaimers are of minimal legal value. There may be some value--especially for larger organisations that send large numbers of e-mails to large numbers of people--for some form of disclaimer to discourage legal action. However, most of the time, we're adding to the volume of useless electronically transmitted information each time we append lines of legalese to our e-mails.
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In my opinion, the problem with the "standard disclaimers", especially the one on confidentiality, is that there are used systematically, even when nothing in the message is confidential, so that they don't mean anything when the message is really confidential. How many messages saying "How are you ", "Where do we go for lunch", etc, with a confidentiality statement attached have you received ? Enough so that you don't even notice a statement and that it becomes useless.