Buzz
Most of us encounter a message stating, "This email and any attached files may contain confidential information" and warning that it should not be read by anyone who is not the intended recipient. If you've ever received such a notice, you may have questioned: How legally binding are these boilerplate statements?
The short answer is: not much—though the full picture is more complex.
Legal professionals generally agree that the generic disclaimer found at the end of many emails holds no legal power. It attempts to establish a contract, but for a contract to be valid, both parties must consent, which does not occur here. At most, it may cause recipients to hesitate before sharing the email, but it does not have legal force behind it.
In one instance, a doctor considered taking legal action against his employer. However, in a decision that might have been imprudent, he emailed his lawyer from his work account. This led the employer to believe that the use of the work email nullified any confidentiality. The doctor disagreed and decided to pursue the matter in court. One aspect of the case revolved around the fact that every email from the law firm contained the same standard disclaimer. The court, however, ruled that the law firm’s generic disclaimer at the end of the emails was "insufficient and not a reasonable precaution to protect its clients."
Their impact can be constrained. A notable case seeking a protective order involved a highly menacing email that included phrases like "Your most determined, unstoppable, and visceral enemy," followed by a disclaimer that stated, "DISCLAIMER: Not one word herein should be construed by anyone as meaning violent or threatening intentions, and instead the entire contents should be understood in their strict literary meaning. There have not been, nor will there be, any elucidated threats of violence or intent, either expressed or implied, within the entirety of this document." The court found this unconvincing, granting the protective order and declaring, "You can't send a document that is both threatening and harassing and think that a disclaimer will make it acceptable."
DO I NEED ONE?
This does not imply that adding a disclaimer to your emails is pointless, especially in professional communication. In a 2011 case, part of the dispute focused on whether a customer list constituted a confidential trade secret. To protect a trade secret, one must take "reasonable efforts" to safeguard it. The court concluded that the customer list did not qualify as a trade secret for a variety of reasons. One key issue, though certainly not the only one, was that the customer lists had been sent multiple times to the other party, and "The emails contain no disclaimer about the confidentiality of the materials attached." While the presence of a disclaimer might not have protected the sender, its absence was a disadvantage in the case.
Disclaimers can also help prevent contracts from being formed. In one case, a real estate investor contacted a bank regarding some properties for sale. The parties signed a negotiation agreement acknowledging that email messages would not be considered binding. The investor then made an offer via email, which the bank countered, and the investor accepted. However, the bank officer had included a disclaimer stating that no terms would be binding until the executive management committee approved them. Ultimately, the bank declined the agreement, and the investor sued for breach of contract. The court ruled that, given the email disclaimers and the negotiation agreement the investor signed, any belief he had that his acceptance of the counteroffer via email created a binding contract was unreasonable.
SO WHAT SHOULD YOU DO?
If you’re aiming to ensure that your disclaimers hold weight and give you a fighting chance in court, experts offer some advice. As per the law firm Reid & Hellyer, “To increase the likelihood that a disclaimer will be considered valid, it might be more effective to position it at the beginning of an email, rather than at the end. However, if you start including it at the beginning of every email, it could raise questions about whether you genuinely intend for the disclaimer to be taken seriously. It may be wiser to reserve disclaimers for certain, specific emails rather than applying them to all correspondence.” Still, it's probably not something to rely on to save you in a difficult situation.
*Disclaimer: this is not intended to replace legal advice. Always consult a lawyer first!
