Time for a disclosure about email disclaimers

| March 30, 2021

There is a good chance you have seen the cautionary and often threatening tails that hang off the end of emails of practically anyone you do business with.

They might start off telling you “this message and any accompanying attachments may contain information that is confidential” before stressing “if you are not the intended recipient please delete the message and notify the sender” and finally – and perhaps abruptly – “acceptance of this email is at the recipient’s risk”.

Disclaimers that appear at the end of emails have become an inescapable accompaniment to almost all business communications.

But just as they seem to be proliferating and growing in length, some of us are questioning whether these wordy wonders serve any real purpose.

Most disclaimers accompany the growing clutter at the end of every email including automated digital signatures, company logos, witty or flashy quotes, pleas to save the trees and, in some cases, mugshots.

These inscrutable masses are one of many hazards and nuisances of the modern workplace and join unwell colleagues insisting on coming into work, annual performance reviews, open plan offices and a daily overload of often purposeless meetings.

In general terms, the email disclaimers are intended to communicate the confidential nature of an email, protect copyright, disclose liability for the transmission of any viruses and attempt to avoid liability for the views of a sender.

Despite making us feel a little intimidated, there are myriad reasons why we are increasingly not taking them seriously.

For starters, very few of us actually read the disclaimers. Most time-poor screen slaves long ago ditched even the slightest temptation to try to decipher them.

There is also the issue that these disclaimers end up appending themselves to even the shortest messages. A simple reply of “yes” can attract 200 words of bluster.

Besides, just think about the paper wasted when messages containing such gibberish are printed out, as is still the practice in some workplaces.

But do not let these peripheral matters detract from the reason many feel an urge to dump the disclaimer.

Most lawyers will tell you that while they are a wise precaution, their power is most likely limited – at least from a legal perspective. We tend to use disclaimers because others do.

They will point out that just because an email lands in your inbox, it does not create some form of contract between the sender and the recipient – one you never had a part in negotiating.

Those in the legal professional will tell you an email disclaimer only works if it refers to established laws.

For example, you are not legally obligated to do anything if you receive an email in error. At the same time, it is a simple courtesy to let someone know you received an email in error.

But if you received someone else’s intellectual property and made squillions by selling it to others, then that is most likely unlawful.

And when it comes to defaming others in an email, even a disclaimer that says the organisation will not be held liable for any defamatory statement made by an employee in the course of doing business is unlikely to be a legal out.

Even though their legal impact is limited, disclaimers remain an appropriate tool for a business to establish some ground rules.

They might not undo poor or illegal behaviour but may signal what recipients can or cannot do – provided they are actually read by the email recipient.

But before we insert a disclaimer, we should consider exactly what we want to protect and why and avoid excessive, needless and often abruptly stated warnings.

And now for an important disclaimer about this author’s opinion on disclaimers.  This piece is intended only for informational purposes, which may or may not be correct, and is not a substitute for proper legal advice.