An Analysis Of Email Disclaimers

akintayo writes "Recently more amd more organisations have required email sent from their accounts to contain an attached disclaimer. This disclaimer is supposed to describe the recipient's rights to 'use' that email. This slate article analyzes the legality and impact of one such disclaimer, and finds it somewhat lacking."

There is a much older Ressource ...

[Sweetshark]

about this here [goldmark.org]. And it also has a collection of stupid disclaimers ..

Its All Mine!

[Shmooze]

In the UK received mail is the property of the receiver, to do with what they like...

Therefore you can forward emailed confidential information as much as you like!

Note of course that true email goes through SMTP across the net, not just through some companies mail server.

These are foolish

[phunster]

Because these warnings are sent with every e-mail and annoyingly to many mailing lists they are legally untenable. In order for these warnings to have real meaning they should only be used on mail that is actually private and meant for one individual or organization. When you send an e-mail to a mailing list, for instance, you should know that most of them are archived and certainly your e-mail will have a long life in the google archives.

I don't imagine that you will have a good outcome in court when you ask the judge to sanction one reader who violated the warning. Your honor, here are ten e-mails that the same person sent to mailing lists with the same warning, how can I take the warning seriously when the sender doesn't?

Re:Limit this crap to four lines...

[beatleadam]

At the company that I work for (A company that is Hyper-Specific about their legal/patent/information sharing policies) this is remedied in a somewhat simplistic manner, though the goal and outcome is still the same. Basically, in a normal email there are settings ala low, medium or high importance but there is also a very specific (read: the Legal Button) check box of "Company Confidential" which is to be used in all the same legal respects as the original posters legal .sig type file.

Re:If you have received this message in error...

[the pickle]

There's already precedent for this in the postal system, at least here in the United States.

If you receive something unsolicited in the US Mail (which includes something addressed to you by accident, but not addressed to someone else and simply left in the wrong mailbox), you are free to do with it as you wish. The sender cannot compel you to obey any license agreement or follow any restrictions they might wish to place on its use, within the bounds of the law. (That is, you can't go out and beat someone up with a billy club someone sends you in the mail, because that would otherwise violate the law, but you're free to use it as a billy club even if the company who sent it to you says it's a sex toy for cows.)

There was a great deal of discussion about this back when DigitalConvergence (remember them?) was sending unsolicited CueCats to people and then suing them for taking them apart and hacking them.

Some info on that situation:

http://www.beau.lib.la.us/~jmorris/linux/cuecat/ [lib.la.us]
http://air-soldier.com/~cuecat/ [air-soldier.com]
http://www.xmission.com/~rebling/pub/cuecat.html [xmission.com]
http://www.logorrhea.com/cuecat/mirrors.html [logorrhea.com]

More on Google; search for "CueCat."

p

Re:spam too

[LostCluster]

Spammers are likely including that paragraph because mimics one that is likely to appear in messages that a lot of people are marking non-spam in their bayesian filters. Whenever any line of text becomes too popular in e-mail, I'm sure we'll see spammers there to capitalize.

Email to govt in Texas becomes public record.

[Anonymous Coward]

Here in Texas whenever you send an email to a state or local government official, it automatically constitutes a public record, regardless of any disclaimers attached, and is subject to the state's open records availablility and record retention laws.

longest disclaimer

[sentientbeing]

I remember a while back the register presenting articles similar to this:

longest email disclaimer [theregister.co.uk]

Most incomprehensible [theregister.co.uk]

Original article [theregister.co.uk]

(All obligingly and typically repeated in full..!)

Re:Dumbest disclaimer?

[mallardtheduck]

They dont need "Void where prohibited" to be voided. The courts, if it got that far would just declare it void. The only reason agreements sometimes have similar clauses is to say something like, "the prohibited bits of the agreement are void, but the rest still stands", because otherwise the complete agreement would be voided on one prohibited clause, and if it is a long and complicated agreement, that would be quite possible.

Re:If you have received this message in error...

[DonGar]

The original purpose of the law was to nix an old scam. Shady companies would ship merchandise to people at random, and them send them a bill.

Originally, people had the legal obligation to return the goods or to pay for them. The companies would make it so hard to return the goods that it was easier to just pay the bill.

In response, Congress came up with a reasonable law that just made the problem go away. Amazing.

Re:They are a waste of space

[peggus]

Sadly it is not unique to the US. I have a friend who works for a large telecom company in Sweden. I regularly recieve forwarded email jokes from him with some ridicoulus legalese at the bottom. Ofcourse I take great pleasure in forwarding it to all my friends.

Re:Limit this crap to four lines...

[gcaseye6677]

I asked my lawyer friend about this, and he said the only legal purpose that these disclaimers can really serve is to prevent the sender from accidentally waiving any rights they may hold. For example, attorney client privilege is a very big deal to lawyers. They must be able to communicate in secret with their client. If an email is misdirected and falls into the wrong hands, any information could not be admitted into court as if it were publicly disclosed. Legally, attorney client privilege is still in effect. Of course the accidental recipient would still see it and there wouldn't be much you could do about that, so if something is really confidential, encrypt it. The same thing could apply to trade secrets or any other form of private communication. However, it would be very difficult to take any action against an accidental recipient, regardless of what your disclaimer said, unless you could prove that they acted with malicious intent after receiving the email.

Re:Meeting of the Minds

[pjt33]

Under British, a contract requires offer, acceptance, intent to create legal relations, and consideration. An e-mail disclaimer meets none of those.

Re:Mail User License Agreement

[clamantis]

As one who negotiates NDAs for a major corporation, I have advised clients that these "disclaimers" are inappropriate in negotiation. You can't dictate the terms of a confidentiality agreement in an e-mail sig, but only in an agreement duly signed by both parties. Even click-and-accept agreements like EULAs are not recognized in some countries, and so we have to insist on signed paper in those cases. (eg: http://articles.corporate.findlaw.com/articles/fil e/00051/005095/title/Subject/topic/Intellectual%20 Property%20Law_Licensing/filename/intellectualprop ertylaw_1_239 ) We do not use disclaimers like this on e-mails, although attorneys advise that their messages should be considered atty-client privilege if marked confidential. And in those cases, they should never be forwarded outside the company. Point is if you're really serious about electronic data getting into the wrong hands, don't use unencrypted e-mail. If you're concerned about improper use by the intended recipient, don't send the info without a non-disclosure agreement.

Re:If you have received this message in error...

[Anonymous Coward]

Does this mean that I have agreed to nothing and may do anything I wish with them, including disassembly, reverse engineering, duplication, modification, and distribution?

Yeah, you may do all that to the original physical CD, so long as it doesn't violate any other law. One of those laws, however, is copyright law. So, if any of those things involves making a copy of the data on the CD, such as by reading the data off it and into your computer's memory (each of them most certainly would involve this), then you'd need a license from AOL to make that copy. That's what the shrinkwrap license is. If you don't agree to that license, you don't have the right to make any copies (i.e. read the CD).

That's how the argument goes, I think (IANAL, of course). Think about it -- if someone sent you a book in the mail, you wouldn't be allowed to start up your own printing press. The same goes for CDs. The only problem is that it's very hard to read a CD with the naked eye, so they send along a license that will let you do something with it other than look at it or use it to decorate your house.

other issues

[curator_thew]

Most of the commentary has ignored a few important points:

(a) if there were ever legal action over an email (say, for example, that you described something important in the email, and the person used it elsewhere), the fact that you have a disclaimer makes it _stronger_ evidence in the court, that would make damages and remedies much easier: the defendent would not be able to claim "d'oh, I did not know" or argue some other implied license, etc. Often the disclaimer is just explictly stating what is already implicit: because what's implicit to me is not always considered that by you: which is why we have written contracts to make all the details clear.

(b) on the issue of confidentiality: it _is_ true that there is no confidentiality in unsolicited messages, thus the "disclosure" disclaimer is junk, _however_ there is always copyright in your email, so while the recipient may be able to generally disclose what they obtained, that may not disclose the _actual detail_ of it without violating your copyright.

On point (b) is a good example: a lawyer sends you an unsolicited C&D with a disclaimer: you are actually free to run around and tell people about what happened, but if you actually _reproduce_ the entire C&D itself verbatim, you would probably be violating the copyright in the letter.

Personally, I use disclaimers: because frankly some people are quite free and easy with forwarding emails off to other people when I am addressing a specific question to them, not to a general audience. Of course, I don't write anything that would offend other people, but in some cases, material has been forwarded out of context. There's really not much I can do, but if there ever _was_ a nasty situation, then at least I know that I've bought myself a _little_ insurance with some explicit disclaimer.

Re:Limit this crap to four lines...

[afidel]

That's the same reason a number of my clients include large legaleese signatures to all outgoing email. As healthcare providers they have very specific regulations they must follow and including such signatures is a requirement of HIPAA.

Re:Even with no disclaimer...

[Luminari]

The professor later threatened to sue me for "libel, slander and defamation" because of the "publication of our confidential and private e-mail conversations", even though there was no disclaimer or even an assumption of privacy.
Let's take a look at this:

1. Libel - The act of posting a false publication (hmm this doesn't work, hes posting an email the person actually sent)

2. Slander - A false or misleading statement (This doesn't work either, again, he just posted a verbatum email sent to him)

3. defamation - The acting of injuring someone by slanderous communication (This applies to statements a person made, not statements that someone else made that you printed)

Fact is, unless you sign something ahead of time, such as a Non-Disclosure agreement, stating that all emails you recieve are confidential, you have every legal right to post anything either mail or email (or phone call, or smoke signal) that someone sends you. By sending information to someone, your essentially giving them the rights to that information. It doesn't matter what kind of disclaimer they put on it, because you didn't sign anything ahead of time.