E-mail disclaimers

More and more mail I receive has some kind of legal disclaimer attached to it. And I am getting more and more annoyed by it. The typical disclaimer usually contains something like the following:

This E-mail and any attachments are private, intended solely for the use of the addressee. If you are not the intended recipient, they have been sent to you in error: any use of information in them is strictly prohibited. Blah blah blah blah... (Copied from the List of Stupid EMail Disclaimers)

So if I am not the intended recipient, this text tells me that I may not use the information in the e-mail. But I only know about these conditions when I am reading the disclaimer at the end of the message; too late. If you want to force these conditions on me, I’ll have to accept them before reading the message, in the same way a licence is presented to me before I install software, right?

And imagine that I am not the intended recipient, why can’t I use the information inside the message to find out who is the intended recipient and forward the message to this person? You clearly forbid this. The same rule also forbids me to tell the sender of his mistake.

Besides the kind of problems described above, such a statement should have no force of law. The sender can’t in general unilaterally stipulate conditions on what the recipient may or may not do with the email. In specific cases, such as copyright, the author may, of course, stipulate what rights are granted to the recipient. There are other instances where there is an implied contract of confidentiality, but those are not created merely by the sender sticking the word ‘confidential’ on a message.

Just compare it to your communication on paper. Do you add a disclaimer to every memo you send out? I don’t think so! So why on earth do you want to add this text to e-mail? Usually the answer is: “Because my boss told me to do it”. Your boss is of course worried about the consequences of your writings, which I can understand, and he thinks that this problem can be solved by adding a disclaimer. So to get rid of these useless disclaimers, we’ll have to educate your boss.

Explain them the possible conflicts caused by disclaimers as I described above.

And tell them that the value of disclaimers is limited, since the courts normally attach more weight to the substantive content of the communication and the circumstances in which it is made than to any disclaimer.

The real solution to his problem cannot be obtained by technology or legal disclaimers.

The real solution is about the people, so train them! Most companies have special communication trainings for the phone support staff, why not do the same thing for those people communicating by e-mail? And of course you have customer relations guidelines for email, don’t you?

And if your boss is not listening to you, there is one more option: fight them with their own means! Each time I receive a message containing a disclaimer, I add the following disclaimer to my replies:

Disclaimer: By sending an email to ANY of my addresses you are agreeing that:
  • I am by definition, ‘the intended recipient’
  • All information in the email is mine to do with as I see fit and make such financial profit, political mileage, or good joke as it lends itself to. In particular, I may quote it on the Internet.
  • I may take the contents as representing the views of your company.
  • This overrides any disclaimer or statement of confidentiality that may be included on your message.
(From a newsgroup article by John Sullivan)

This disclaimer is just as ridiculous as any other disclaimer, and has no legal value. But it might show the uselessness of disclaimers to people using them.

Jeroen Sangers @jeroensangers

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