Email Disclaimers May Prove Pointless for Many

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Email disclaimers, those three or four sentences at the bottom of many emails, are everywhere and may prove pointless.  What started out as a tool to help protect the privacy of medical patients, banking clients and recipients of legal advice has spread since the 2013 disclosure that the NSA, National Security Agency, has been reading people’s emails.

Are the disclaimers any good and do they hold any legal weight?  Or are they just mumbo-jumbo that perpetuate urban legend?

Disclaimers

An email disclaimer or notice is added to an outgoing email and forms a separate and distinct section from the main body of the message.  Some legitimate reasons for an email disclaimer do exist.  When the need to remind someone of confidentiality, contract information or copyright, the disclaimer is a bone fide way to help the recipient understand.

The Economist, an established international finance magazine and newspaper, reports that people long ago stopped paying attention to disclaimers.  The proliferation of disclaimers have made them hidden in plain site.  The Economist also claims that they are not legally enforceable.  One attorney points out that email disclaimers have been found to have no legal impact in the United States.  The attorney also notes that they are only legally effective when used at the top of the email instead of below the signature line, which is customary.

NSA Paranoia

Since Edward Snowden unleashed a torrent of information about the activities of the America’s NSA, many organizations and individuals have started putting a disclaimer on their emails below the closing.  While there is minor variation in the wording of the disclaimer, most read similar to this:

This email might be illegally gathered and stored by the NSA in secret.  The people sending and receiving this email do not consent to the recovering or saving this email and any connected metadata as well as printing, duplicating, re-sending, spreading or otherwise using it.  If you think you have been sent this email in error, please delete it right away.

Although it may sound impressive in its various manifestations, law experts seem to agree that it is the type disclaimer which courts have already found without merit legally.  Here’s one attorney’s autopsy on the ever present disclaimer.

“This email might be illegally gathered and stored by the NSA in secret.”  The attorney points out the unlikelihood of anyone in the U.S. being unaware of the maelstrom created by Edward Snowden’s leak.

“The people sending and receiving this email do not consent to the recovering or saving this email and any connected metadata as well as printing, duplicating, re-sending, spreading or otherwise using it.” The attorney says that the person sending the email purports to speak for the recipient as well.  The recipient may not mind the dissemination of the document.  Additionally, what is the logic of sharing links with someone and then telling them in the footer that the email cannot be resent?

“If you think you have been sent this email in error, please delete it right away.”  One source says that if a person deletes an email, then the email is not truly deleted; it still resides on the recipient’s hard drive.  Even if the recipient smashes the hard drive with a hammer, the email still exists on any number of servers between the sender and receiver.

Useless

The majority of disclaimers are seeking to impose a contractual obligation unilaterally and therefore are unenforceable.  In the example above, the phrase that begins, “The people sending and receiving this email…” is one person, the sender, imposing an obligation on someone, the recipient, without their consent.  Email disclaimers, for many users, may prove to be completely pointless.

If email disclaimers prove to be pointless, then why are disclaimers like this so prevalent?  Individuals see other individuals using them and feel they should also.  While the disclaimers themselves carry no legal weight, several courts in the U.S. have decided that email disclaimers may have some legal bearing only when intentionally included either in the body of the email or before the text of the email itself.

“Boilerplate” email disclaimers which appear below the signature line have no legal standing.  Including the disclaimer below the signature line across all emails a person sends out denies the disclaimer of whatever affect it may have had anyway.  By putting it at the bottom of the email, the sender has lost the ability to claim that anyone was bound by the wording.

Email disclaimers placed at the bottom of the email may ultimately prove to be a pointless waste of time for many.  Especially if it’s a disclaimer that is used in most of the emails one sends out.

By Jerry Nelson

Sources
Goldmark
The Register
The Economist

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