by Adam Freedman
Today’s topic: Those annoying email disclaimers
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Two of my readers, Jill and Alex have recently asked about those confidentiality notices at the bottom of some emails, which state that misdirected emails should be immediately deleted from the system of the recipient. Jill asks whether they’re just a waste of time, and Alex asks whether they constitute a contract.
Are Email Disclaimers Legally Binding?
Great questions! Yes, those disclaimers in your email can be annoying and they just smack of legalese. Of course, as the author of my own annoying disclaimer--that bit about no attorney-client relationship--I hesitate to pass judgment on other disclaimers. But what the heck?
The short answer is that, although some disclaimers are legally useful, and a few are even required, most of them have limited effect. But they rarely do any harm, which is why people tend to use them.
What’s the Point of Email Disclaimers?
For the most part, people use email disclaimers to protect themselves against legal claims that could be brought against them, either by the recipient of the email, or by third parties.
First, let’s consider the recipient of the email. Emails may contain professional advice or representations relating to business transactions. If the advice turns out to be bad, or the representations false, the recipient could sue the sender for negligent misrepresentations. That’s why companies sometimes include disclaimers saying that the content of the email is not be relied upon.
Even Legal Lad Uses Disclaimers
That, incidentally, is the gist of the Legal Lad disclaimer: by stating that you and I don’t have an attorney-client relationship, I aim to avoid even the possibility that some listener or reader will claim that I rendered individual legal advice to him or her. Of course, I know you would never do that to me. But what can I say? I’m a lawyer; I’m cautious.
In any event, a court will look at all the facts and circumstances when determining whether or not an attorney-client relationship exists. But in the mix of facts, a disclaimer can make a big difference. Not long ago, the Ninth Circuit Court of Appeals held that a disclaimer in “plain English” can be effective in avoiding the creation of such a relationship.
How Can Email Disclaimers Protect You?
Another issue is contractual liability. That refers to the situation where the email recipient thinks he has a contract with you, but you didn’t intend to form a contract at all. For example, you send an email to the local chimney sweep expressing interest in his services. He thinks you’ve already agreed to hire him, and the next thing you know, you’re trying to stop a guy in a top hat from climbing onto your roof. That’s why emails sometimes contain disclaimers to the effect that they are not intended to form a contract.
So: an email disclaimer can prevent a contract from being formed, but to answer Alex’s question, an email disclaimer does not create a contract with an unintended recipient. Contracts require a “meeting of the minds” – they cannot be dictated unilaterally.
One note of caution: a court in Scotland recently observed that a disclaimer saying that “nothing in this email constitutes a contract” applies only to the body of the email, not to any attachment. So you’ll want to be precise in wording any disclaimer.
Disclaimers to Protect Against Claims by Third Parties
Now, let’s look at claims by third parties. The most common issue here is liability created by misdirected emails. For example, say company A and company B are in the middle of negotiating a deal. Now suppose that somebody at company A accidentally sends an email with confidential information about company B to a friend of his at company C. Of course, company A’s email contains a standard disclaimer saying that “if you are not the intended recipient of this email, you must delete it.”
Can company B sue company A for breach of confidentiality? Probably so--at least if the two companies have some sort of confidentiality agreement. In the lawsuit, company A would argue that its standard disclaimer proves that they took all reasonable precautions to guard against accidental disclosure of information. That might help, but it’s no silver bullet.
Disclaimers at the bottom of an email are not very persuasive.Courts will look at many factors, including the placement of the disclaimer. Disclaimers at the bottom of an email--which is where most of them go--are not always very persuasive. By the time the reader gets to the bottom, he or she will have already read the supposedly confidential material--which suggests that the sender wasn’t all that vigilant about safeguarding the contents of the email.
The same analysis applies to attorneys, who usually include similar language in their emails to avoid liability for accidentally disclosing information protected by attorney-client privilege. Again, the disclaimer might help, but it won’t automatically get the lawyer off the hook.
When are Disclaimers Legally Required?
And finally, keep in mind that some disclaimers are legally required. In the US, companies in the healthcare industry and in financial services are often required by law to include certain disclaimers in their emails. Also, under IRS regulations, people who provide tax advice are required to use an email disclaimer. Irritating or not, please cut these email senders some slack, because after all, the law’s the law.
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