How important is the email disclaimer?

The ubiquitous email disclaimer: it’s appended to millions of emails circling the internet universe. But do you ever really take any notice of them? How often have you taken the time to read one? And if you have an email disclaimer that is religiously and automatically attached to every one of your outgoing emails, when last did you read or review it? There are many reasons why people may want to use email disclaimers: they want to protect confidential information, protect their copyright, avoid unintentionally entering into agreements with the recipient, or perhaps it’s that age-old reason – because everyone’s doing it. But are they really necessary? How strong is the email disclaimer in a court of law? Does it do anything to protect you? Well, we don’t really know. The email disclaimer is not a legal requirement. Nor has it been tested in a South African court. But if it should ever be tested, here are a few of the problems that the disclaimer may well encounter.

No consensus: Often the disclaimer is automatically (electronically) attached once the sender sends the email. The recipient then receives the email and in most instances doesn’t even notice the email disclaimer, let alone bother to read it. As is the case with any agreements or undertakings, both parties need to understand what they’re agreeing to, and agree upon the terms. In the case of the disclaimer, in most instances both sender and recipient don’t pay the disclaimer any more than a cursory thought. It follows, then, that no binding legal consequences should arise as a result of the inclusion of a disclaimer.

Unilateral terms: Another challenge is that the email disclaimer is drafted and sent by the sender. The recipient is not given any opportunity to negotiate the terms of the disclaimer nor to reject any part of the disclaimer. The inclusion of the disclaimer is a unilateral decision taken by the sender. It follows, then, that the recipient should not be held bound to a clause that is unilaterally imposed on them, and only become aware of after they receive the message, at which stage they are unable to decline their receipt of the message on the basis of their rejection of the disclaimer.

Generic wording: Most email disclaimers are drafted once, given to the IT department to add to the bottom of every email generated using the company’s infrastructure – then forgotten about. The fact that the disclaimer is not tailored to suit the requirement of each email would in all likelihood further reduce its effectiveness.

Overuse: where a company uses an email disclaimer it is attached to the bottom of every email. Every one. Even the “How was bridge club?” message to your mother and the “I’ll meet you at the restaurant after work, love you” email to your better half. Attaching the disclaimer to emails that don’t even remotely require it can result in the efficacy of the disclaimer diminishing as a whole, even when attached to mails that are worthy of its inclusion.

We’re certainly not advocating that you should now go and delete the email disclaimer from all your emails. But we would caution against placing any substantial reliance on it. The lesson in this is that if you are sending emails that do require protection make sure that your email disclaimer is not your only avenue of recourse. Make sure you’ve covered a few bases first:

  • Ensure that you’ve signed a Confidentiality Agreement with the recipient before emailing confidential information;
  • If you’re worried about copyright protection avoid sending it in an editable format;
  • Consider encrypting sensitive information;
  • Have policies and procedures in place so that employees are aware of the extent to which they are permitted to use company infrastructure for private use;
  • And make sure that you are sending the mail to the correct recipient!

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.

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