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.
-----------------------------------------------------------------
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.
-----------------------------------------------------------------
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 !)
-----------------------------------------------------------------
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,
-----------------------------------------------------------------
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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