Are Email Disclaimers Effective?
Email has become a common, effective and inexpensive method of communication for business and commercial purposes. A relatively recent development has been the use of disclaimers that are automatically generated by the email software every time a new email is sent and usually appear at the end of the email. Email disclaimers often include statements to the effect that the contents of the email may be confidential, or even privileged, and that unauthorized or accidental recipients should not read the contents; that the recipient is under a duty of confidentiality with respect to the contents of the email; that the sender of the email is denying any liability for the contents or for any harmful virus that may accompany the email; or that "errors and omissions are excepted" from whatever message the email contains.
The question is: what legal effect, if any, do these types of disclaimers have when attached to every email that someone sends? To answer that question, it is necessary to consider what the disclaimers are trying to accomplish. The types of disclaimers described above are often, in very general terms, actually trying either to impose a contract on the recipient or to avoid the creation of a contract between the sender and the recipient. For example, a disclaimer that purports to create a duty of confidentiality (assuming that such a duty did not already exist between the parties) is an attempt to create a legally enforceable obligation without the various elements of a contract, such as consideration, being in place. Conversely, an "errors and omissions excepted" disclaimer may be an attempt to allow the sender (assuming that the email otherwise constitutes a contract or is part of an existing commercial arrangement) to change the terms of the contract unilaterally.
This article does not attempt to review all of the potential types of disclaimers and their legal effect. However, it is clear that they are often a poor choice to accomplish their intended purpose. As a result, it might be worthwhile to consider what other factors might be considered when deciding to use auto-disclaimers. One factor is simply the number of emails that have disclaimers. They are so common that they are often invisible. In other words, many people don't read them. At the same time, they make the email longer (which particularly offends those who are concerned with wasting paper). If they are read, do you want every email you send to imply that there may be errors in it? Is every email you send potentially a carrier of a harmful virus?
Usually, the best way to create or avoid contractual liability in email correspondence is with clear, unambiguous language set out in the body of the email. Relying on standard form disclaimers for either purpose can lead to unintended consequences.
The comments in this article are intended as general information only and are not to be relied on as legal advice or an opinion applicable to your particular situation. For further information, please contact Bruce Farrend at Farrend Law.