The disclaimers that appear at the end of emails have now become a ubiquitous accompaniment to almost all business communications. The Law Institute Journal even ran a competition some years ago to find the longest and most incomprehensible disclaimers around. But are email disclaimers enforceable and when should consider using them?
Are email disclaimers enforceable?
First of all, put aside any ideas that terms in email disclosures are strictly enforceable or that failing to heed them may be unlawful. Australian courts generally place more emphasis on the substantive content of an email, rather than the content of a disclaimer displayed in the footer of an email.
Perhaps unsurprisingly, the United States takes a far less lax approach to email communication, as it seems to do toward much else. For example, the Hatch Act can have you in breach of the law for forwarding emails urging political action, if sent within a federal building. In this context, strict disclaimers denying the employer’s political endorsements would be worthwhile.
Here, general practice dictates that when in doubt, we include a disclaimer. Given the varied nature of email communication, this isn’t a bad idea. However, the length and content of these disclaimers should be weighed against the purpose and activities of your business. Consider what communication you want to protect, and why; and be certain to avoid the excessive noise of needless warnings.
When could you use a disclaimer?
Disclaimers regarding defamation are probably pointless. A disclaimer cannot excuse a defamatory statement of an employee, where it is made in the course of business. A disclaimer cannot avoid this. Where the statement is made outside of the course of business, the employer would not be held liable anyway. Therefore, a disclaimer has no effect on whether or not defamation can be established. It merely indicates an intention on the part of the employer to distance itself from defamatory email communications.
A disclaimer also cannot undo a breach of copyright. It cannot control the conduct of a person, who receives protected material that was unwisely or inadvertently circulated. Further, the law already seeks to protect copyright material, which makes a disclaimer to that effect redundant. Perhaps a disclaimer could be useful in reinforcing this message.
Professional privilege is a little murkier. The disclaimers used by the legal profession, for example, have been substantially copied from traditional paper-based communications between practitioners. Therefore, these were tailored to the specific obligations held by lawyers, and substantially lose their meaning when directed at anyone other than an opponent-at-law.
When should you use a disclaimer?
When requiring communications be treated confidentially, an express statement might make the difference between attracting confidence or not. This is particularly relevant now, when exposing your private information to the wrong recipient is just a quick click away.
A disclaimer certainly can be useful in defending against negligent misstatements. As with any form of communication, email can be used to provide professional advice, and trouble may arise if a third party relies on this. It is essential that an appropriately worded disclaimer makes it clear that the information is not to be treated as advice to be relied upon.
So what should you do?
Ultimately, disclaimers are useful. They may not undo a wrong, nor be binding in a court of law, particularly where other considerations prevail. However, a disclaimer can indicate to recipients what they have permission to do, or not do, with your communications.
An appropriate disclaimer should also convey an impression of a business’s values and priorities, and confirm to employees what they may or may not use email for.
But most important, a disclaimer should not be in excess of 1000 words, like the winning entry submitted to the Law Institute Journal.