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EMail Disclaimers - Frequently Asked Questions

Disclaimer

I am not legally trained, some would say I am not trained at all. Therefore all comments here are either pinched from Data Protection colleagues or I have made up myself. True to form I bear no responsibility for my actions, example disclaimers or illogical conclusions. Where I use passages verbatim I have always asked for permission but I cannot remember if I always got it. If you copy any disclaimers from these pages you use at your own peril.

You are hereby granted permission to read the rest of the page, you may also store in your browser's cache ... etc etc.

I hope you see the funny side of things B-) Finally, this page was written because - in my capacity as Data Protection officer at the time - I was asked once too often about using EMail disclaimers.

FAQ


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Do I need an EMail disclaimer?

Probably not. More often than not disclaimers are very specialised passages of text. They may only have some validity if written by a professional (lawyer, solicitor) and are also written for a specific purpose. For example, to safeguard communication between a solicitor and a client, or to safeguard a professional when giving advice using EMail.

Many/most firms of solicitors use disclaimers, so can they all be wrong?.
Most disclaimers originated from solicitors' faxes. Given the technology they were essential in as much as the fax could be send to the wrong number or anyone could read what arrives at the other end. Normal practice for faxes is to put the disclaimer on the first page of a fax. It is argued that as EMail can be encrypted using a disclaimer is meaningless because "enough care" has not been taken to safeguard the contents of the message.

Nevertheless, the value of any disclaimer is subject to the sender being able and willing to identify someone who misused a message, prove misuse and take the case to court.


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Will a disclaimer safeguard my messages?

Email messages are not safe! They go over many points (routers, switches etc) in Wider Area Networks and over the Internet where they can be seen by network supervisors (and hackers). A disclaimer can only create a false sense of security whilst in fact you may be breaking Data Protection regulations by transmitting personal data. Hands up those those who have not send a message to the wrong person or the wrong attachment.

Having a disclaimer does not prevent a message from being intercepted, nor being read by the wrong recipient nor being used against you in a court of law. With regards to Data Protection when transmitting personal data via EMail, we have to take adequate precautions. Simply put, PGP is the only adequate precaution. The most a disclaimer can hope to achieve is to notify the recipient (or interceptor) that the contents are confidential.

The only reasonably safe EMail message is one encrypted using Pretty Good Privacy (PGP). For more information about PGP see:
Janet PGP home page
Janet PGP FAQ


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Where do I place the disclaimer?

If you have not given up yet and you must use a disclaimer, then it should really be at the top of the message, so readers, snoopers and others are immediately warned of what follows. Having said that, putting a disclaimer at the beginning of a message you'll probably look completely mad, albeit precise.


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How/when should a disclaimer be used?

Only use a disclaimer according to the content you are transmitting. There is no point in using a disclaimer to indicate confidentiality when posting to mailing lists.

Used sparingly may add some weight to the warning it conveys.


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Can EMail be used as evidence in court?

Yes, at least in the USA. Anything you write in an EMail message can be used in Court. The only messages that could not be used in evidence would be those between a lawyer and his/her client. In legal jargon this means any correspondence between a legal representative and a client attracts "legal professional privilege"

Do not ask me if a hacked EMail message can be used in Court. Although hackers may not want to take anyone to court, they may pass the message on to someone else and eventually the message ...


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Examples

The information in this e-mail and any attachments is confidential and may be subject to legal professional privilege. It is intended solely for the attention and use of the named addressee(s). If you are not the intended recipient, or person responsible for delivering this information to the intended recipient, please notify the sender immediately. Unless you are the intended recipient or his/her representative you are not authorised to, and must not, read, copy, distribute, use or retain this message or any part of it.


This email is confidential and should not be used by anyone who is not the original intended recipient. If you have received this e-mail in error please inform the sender and delete it from your mailbox or any other storage mechanism. Macmillan Publishers Limited cannot accept liability for any statements made which are clearly the sender's own and not expressly made on behalf of Macmillan Publishers Limited or one of its agents.


This is my personal opinion, not my firm's.
This is not legal advice.
You are not my client.

The above disclaimers are used by firms of solicitors to safeguard themselves in case a person thinks that "... an attorney-client relationship has been formed where the attorney did not think this was the case..."


General

This email, and any files transmitted with it, is confidential and intended solely for the use of the individual or entity to whom it is addressed.

If you have received this email in error please notify Xxxxxxx Yyyyyyy on +99 9999 99999 or email postmaster@xxxxxx.yyy.xxx

This message has been generated by MIMEsweeper and certifies that the message and attachments have been swept for all known and recorded computer viruses. However, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Xxxxxxx Yyyyyyy for any loss or damage arising in any way from its use.


How about the following for disclaimers!

Unencrypted electronic mail is not secure and may not be authentic. If you have any doubts as to the contents please telephone to confirm.
-----------------------------------------------------------------

Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message, and notify us immediately. If you or your employer does not consent to Internet email messages of this kind, please advise us immediately. Opinions, conclusions and other information expressed in this message are not given or endorsed by my firm or employer unless otherwise indicated by an authorized representative independent of this message.
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The information transmitted is the property of this company [name removed] and is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Statements and opinions expressed in this e-mail may not represent those of the company. Any review, retransmission, dissemination and other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you received this in error, please contact the sender immediately and delete the material from any computer.
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If you are not the intended recipient you must not distribute or copy this transmission and should please notify the sender. Your costs for doing this will be reimbursed by the sender. (hackers please send me your invoices !)
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IMPORTANT NOTICE: by reading this message you agree to the notice below.
*************************************************************************************
I am on holiday the first 2 weeks of July. Your message has been forwarded to my secretary,
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Finally

"This is a personal opinion and nothing to do with my employer." is a rather common disclaimer at the end of email messages. What it does is indicate to the reader that what they read is a person's personal opinion and not company policy. I do not know if in a legal sense it removes any liability from the company/employer for the actions of an employee. Things that comes to mind is using company resources and company time to participate in private discussions. The company is the provider of the EMail service, computer etc ... [IF ANYONE WISHES TO CONTRIBUTE OR KNOWS OF INFORMATION, PLEASE LET ME KNOW].


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Conclusion

I take this conclusion to be true for Higher Education Institutions particularly in the United Kingdom. Maybe the answer is not so simple when solicitors communicate with their clients where both sender and recipient have to be capable of using PGP.

"... the warnings are of dubious legal value, they are often poorly drafted for the e-mail environment, and usually placed at an inappropriate place in the e-mail. People using them often fail to use them properly, i.e. only for confidential info., and by and large, their major effect is to amuse and/or irritate other people. Essentially the use of such disclaimers is a lazy way of putting off the creation of an institutional e-mail and digital information policy which lays out what can be sent by e-mail and whether or not it should be encrypted (and also delays the day when people have to learn how to use encryption)."

Andrew Charlesworth
[My emphases, both bold and underlined]


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Thanks to (in alphabetic order):

I have not attributed directly any - but one - quotations or disclaimers to the people mentioned below although they have provided me with all the information and thoughts for this page. True to form, I shall not put them in a position of offering legal advice over the internet ... Most of them are practicing professionals (solicitors, attorneys, lawyers) and such advice should cost money. All typos are mine. One day I will manage to connect a spell checker to the programer's editor I use to compose these pages.


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Links (in alphabetic order):

Charles Christacopoulos
Secretary's Office
March 1999

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Last updated: Thursday, 2002-11-14, 17:51:14 gmt
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