The other day I received an email and the disclaimer at the bottom was over 1,000 words long. 1,000 words! Seriously. It’s very rare that I receive an email from a company of any size that doesn’t auto-drop a standard disclaimer at the bottom of every company email. It started me thinking about the reasons companies use these and whether or not there’s any legal or other value to them.
Why Companies Use Email Disclaimers
My certainly not exhaustive list of reasons companies use email disclaimers includes:
- To communicate the confidential and (for law firms) privileged nature of the email
- To disclaim the formation of a contract
- To assert a copyright in the email contents
- To disclaim liability for viruses transmitted by the email
- To disclaim a negligent misstatement
- To disclaim employer’s liability for the views of the employee-sender
Disclaimers Imply Confidentiality
I’ve concluded that, with the exception of the second bullet, the other reasons rest on shaky legal footing. For today, let’s just look at the first reason – communicating that the email and attachments are confidential and, in the case of law firms, privileged. Based on my limited sampling, I suspect this is the most common email disclaimer. It seems like every large company uses some version of it such as:
“The information transmitted is intended only for the person or entity to which it is addressed and may contain proprietary, business-confidential and/or privileged material. If you are not the intended recipient of this message you are hereby notified that any use, review, retransmission, dissemination, distribution, reproduction or any action taken in reliance upon this message is prohibited. If you received this in error, please contact the sender and delete the material from any computer.”
Confidentiality obligations generally arise via contract, such as by signing a non-disclosure agreement. Contracts, as we all know, require both parties to agree – what the law calls a “meeting of the minds.” Dropping a standard confidentiality disclaimer at the bottom of every company email doesn’t unilaterally force on a recipient any duty of confidentiality. In other words, this disclaimer is of no legal effect.
There is, perhaps, some deterrent effect. An unintended recipient may think twice about forwarding an email received by mistake after reading a confidentiality disclaimer. Obviously, putting the disclaimer at the top of the email would be more effective than at the bottom although understandably very few companies are willing to disrupt the flow of every email communication with a bold disclaimer at the top. Do I personally think this is likely to be of much practical use anyway? I don’t. These disclaimers are so common as to be often overlooked. Also, any well-informed recipient will know the disclaimer doesn’t carry much weight and any bad actor is not likely to pay the disclaimer any heed. Still, I acknowledge there are circumstances where the disclaimer may serve its purpose. Let’s say there is nominal (but not zero) deterrent effect.
Disclaimers Asserting Attorney-Client Privilege
Using email confidentiality disclaimers to assert attorney-client privilege is of a little more legal value.
First, the recipient doesn’t need to agree to the privilege as with a contract. It is unilaterally asserted. However, courts and jurisdictions vary on how they handle inadvertent disclosure of privileged information. Some say the disclosure waives the privilege and, since you can’t un-ring the bell once it’s rung, in these states the disclaimer doesn’t help. Others say the privilege needs to be waived intentionally. Here, the disclaimer helps.
The third approach is a balanced approach, which weighs things like the precautions taken to protect the privilege and the extent of the disclosure. Under a balanced approach, the standard company disclaimer probably helps. I say probably because there’s a school of thought that says that auto-dropping the disclaimer on every company email dilutes the privilege, i.e., it needs to be thoughtfully used for communications that are actually privileged or courts may decline to uphold the privilege even where it applies. Doing my own balancing test, I think that overall there is legal value to the attorney-client privilege email disclaimer. Sure, it’s much better used judiciously for emails that are actually privileged although, in the interest of ensuring those situations aren’t inadvertently missed, I think a standard disclaimer for law firms makes sense.
Standard Confidentiality Disclaimer
Let’s turn back to the approach for non-law firms, where the company is not (or very rarely, at least) asserting a legal privilege in the email contents. As discussed, there is basically no legal value and only a nominal amount of deterrent value to the disclaimer. However, it isn’t very intrusive to auto-place a one line disclaimer at the bottom of every company email. Also, some companies think the disclaimer lends an air of professionalism to email communications. I think that’s a small consideration although it’s an additional one.
So, I think generally companies should use this standard email confidentiality disclaimer. That being said, I can imagine the company that thinks email disclaimers are antithetical to its brand. For example, a hip marketing agency or new and disruptive tech startup might think dropping legalese at the bottom of all its emails impacts the desired tone of its communications and that this consideration outweighs the little bit of value the disclaimer provides. While I think these disclaimers are so common as to fall into the “seen but not noticed” category, I’d support this thinking in certain contexts. And, I’d be open to hearing other business reasoning for not including a standard confidentiality disclaimer.
But, in the absence of a compelling business reason to do otherwise, I think companies should use a standard confidentiality disclaimer. The disclaimer should be devoid of legalese. After all, it’s of no value anyway so why go through great efforts to word things just right so that they hold up in a court. Here’s a sample confidentiality disclaimer I like:
“This message and its contents are confidential. If you received this message in error, do not use or rely upon it. Instead, please inform the sender and then delete it. Thank you.”
In future posts, we’ll take a look at the value of using email footer disclaimers for other purposes.
Part of my practice is providing outside general counsel services to growing businesses and social enterprises. That includes giving advice to help business owners manage and navigate legal risks. My goal is to free business owners up to focus on what they do best – making money by providing great products and services. If you have a question about email disclaimers, employee matters, contract law or anything else that relates to business law, give me a call at 512.888.9860.