Ask LH: Do Email Disclaimers Have Any Legal Validity?

Dear Lifehacker, Almost every business email has a disclaimer telling people not to forward it or read it if it has been sent accidentally. Often this is a compulsory part of your email signature. Do these terms have any legal standing?

You know the type of disclaimer I'm talking about. Usually they has wording along the lines of:

This message is intended for the addressee named and may contain privileged information or confidential information or both. If you are not the intended recipient please delete it and notify the sender.

What are your options if you're accidentally CC'd on one of these emails? Are you legally obligated to obey the disclaimer, or is it just empty posturing? Cheers, Legally Curious

Dear LC,

If you're looking for in-depth legal advice, you really need to talk to a practising lawyer. With that said, here's a basic overview of the rules as we understand them.

In Australia, the terms and conditions attached to emails are only enforceable if they refer to established laws. For example, failing to notify an intended recipient about their email isn't unlawful, but selling the confidential contents to a third party usually is.

In other words, email disclaimers aren't binding in a court of law unless illegal activity is involved. So why do they exist? In short, they help to reduce the sender's liability from any potential fallout. Plus, it's just good company practice.

You can rest assured that you aren't legally obligated to do anything if an email gets sent to you erroneously. However, it's still good manners to alert the sender about an email that wasn't intended for you. This only takes a few seconds of effort.

Also bear in mind that you need to be extra careful with any email disclaimers set up by your place of employment. Failing to follow them could violate your contractual obligations and result in disciplinary action.

Cheers Lifehacker

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Comments

    Geez, I still remember the fallout from 2 years ago. I was accidentally sent an email with "ok" in the body copy. Seeing the disclaimer, I got scared - so I forwarded to my lawyer. We had a chat, then sent off a few more letters to diffuse any potential legal action. Sure it cost me $1,500, but it made me feel safer.

    Imagine the damage the company could have done to me if I took no action. I may have lost my house.

    "In short, they help to reduce the sender’s liability from any potential fallout. Plus, it’s just good company practice." No. Email disclaimers may be common company practice, but that doesn't make them good company practice. Since these disclaimers haven't been tested in court it's impossible to be definitive, but it's highly unlikely that even the best formulation of them would have any enforceable legal value. It might even be possible for a disclaimer to reduce a recipient's responsibility. Illegal activity on the part of both the recipient and the sender is already covered in law; a disclaimer which doesn't cover all possible unlawful uses could actually create loopholes. And even assuming that a disclaimer can be meaningfully constructed it would have to appear at the top of an email message rather than the bottom for a case to be made at all that the recipient had accepted the terms.

    If email disclaimers were to have any value, they would have to be the first lines in the email. Generally people start reading at the top, and once you reach the end and read the disclaimer, it's too late to unread.
    Also, such disclaimers need to be used accordingly. If they are attached to every email send out, jokes and all, how am I to know when a disclaimer is applicable an when not?
    And what if the company I work for is a publicly listed company and has a legal obligation to retain all email send and received? If the sender requires me to delete the email, they are actually asking me to breach the law. That's illegal in itself.
    And then there's the untested in court matter. For 20 years and going strong.
    I have a disclaimer on my personal emails too, but it reads somewhat different:

    "DISCLAIMER: This email could contain confidential information and is for the intended recipient only. If you are not the intended recipient, we apologize. Email transmissions cannot be error-free or guaranteed to be delivered (correctly) and are constantly intercepted, corrupted, destroyed, arrive late or incomplete and often contain viruses. The sender does not accept any liability for damage as a result of the transmission of this e-mail.
    Any views or opinions expressed in this email are solely those of someone else and do not represent anyone else's."

    "DISCLAIMER: We're no strangers to love, you know the rules and so do I. A full commitment's what I'm thinking of, you wouldn't get this from any other guy. I just wanna tell you how I'm feeling, gotta make you understand-

    Never gonna give you up, never gonna let you down, never gonna run around and desert you
    Never gonna make you cry, never gonna say goodbye, never gonna tell a lie and hurt you."

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