September 14, 2007
Email Disclaimers
Posted by Gordon Smith

Ed Foster wonders about email disclaimers: "Do e-mail confidentiality notices serve any real purpose? Do they actually have any legal standing? And if not, why do so many people -- particularly lawyers -- routinely append them to all the messages they send out?"

Ed analyzes the issue from a contract perspective, concluding that "confidentiality notices certainly seem to have what the lawyers would call contract formation issues." But in a recent article on protecting email privacy, Ned Snow suggests a property analysis:

Contrary to popular belief that email disclaimers are of no legal effect, an email disclaimer that requests an unintended recipient to destroy an email does appear to merit legal recognition: gift law and finders law imply that the email sender retains a property interest in the email. The following simple email notice appears to have legal effect: "If you are not the intended recipient of this email, the email sender requests that you destroy this email." Because the unintended recipient never receives a property right superior to the email sender, the unintended recipient must comply by deleting the email.

Hmm.

There seems to be precious little case law on this subject. Strange, given that email disclaimers have generated a fair amount of commentary. While we await definitive resolution of this issue, we might as well have fun with it, especially if we can include a reference to Sarbanes-Oxley. This comes from a followup on Ed's column:

But what if we all treated e-mail messages exactly the way the dumb disclaimers tell us to? One reader gave an example from his own company. "In our recent Sarbanes-Oxley process we were dealing with a company who attached this phrase to every e-mail: 'Any disclosure, copying, or distribution of this message, or the taking of any action based on it, is strictly prohibited.' So when I received an e-mail asking me to go to a meeting, I didn't go. And when I received an e-mail saying 'Please call me.' I didn't call. That would have been taking an action based on the e-mail. The employee who had been sending me the e-mails was quite taken aback when I explained that. Normally I would have ignored such nonsense, but since this was for Sarbanes-Oxley, I figured I had to take the process seriously."

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