Should You Use Email Disclaimers?
By Noel Bagwell
for Executive Legal Professionals, PLLC
from the Executive Legal Professionals Newsletter Issue 13
Observe the Common Email Disclaimer in its natural habitat:
“This message and any attached documents contain information which may be confidential, subject to privilege or exempt from disclosure under applicable law. These materials are intended only for the use of the intended recipient. If you are not the intended recipient of this transmission, you are hereby notified that any distribution, disclosure, printing, copying, storage, modification or the taking of any action in reliance upon this transmission is strictly prohibited. Delivery of this message to any person other than the intended recipient shall not compromise or waive such confidentiality, privilege or exemption from disclosure as to this communication. If you have received this communication in error, please immediately notify the sender and delete the message from your system.”
What’s that worth, in terms of protection? The short answer: probably not much.
“There is no legal doctrine or theory under which an email confidentiality disclaimer is enforceable
[when the email has been inadvertently sent to an unintended recipient]. There is virtually no scholarly analysis of the impact of email disclaimers and very little analysis by non-scholars. One of the few authors who have commented on the subject suggests that the misconception that email disclaimers have validity may arise from the mistaken belief that the Electronic Communications Privacy Act (ECPA) somehow applies. Michael Santarcangelo, “Do Email Disclaimers Matter?
,” Sec. Catalyst
(Oct. 17, 2007). But, as this author points out, the ECPA prohibits only “intercepting” emails. Emails that arrive at their destination—even if the sender did not intend that destination—are not emails that have been intercepted in transit, and the ECPA is therefore inapplicable. In short, the ECPA is focused on the criminal intent of the interceptor, not the ability of the sender to execute his or her own intentions.” (Hutchins, 2013)
If you are trying to deter an unintended recipient from misusing information obtained in an email they were never supposed to have received, an email disclaimer is probably not going to be effective for that purpose. So, it might not be best to even worry about using one at all. The only reason an email disclaimer might be useful to you is if your email is unsecure, and you’re worried about intercepted emails, and how the information obtained from them might be misused.
Finally, when in doubt, consult an attorney. There may be better ways (than an email disclaimer) to protect yourself from misuse of illegally or unintentionally obtained information transmitted via email. Your attorney (and probably an IT professional) can give you some sound advice about how to protect yourself and your business.
- Hutchins, J. (2013, February 23). Do Email Disclaimers Really Work? Retrieved May 29, 2015, from http://bit.ly/1GKqHiF
- Also, the email disclaimer in the featured image for this post was written by James Sinclair, and borrowed from this page.
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