Do Those Email Confidentiality ‘Disclaimers’ Really Mean Anything?

Do Those Email Confidentiality ‘Disclaimers’ Really Mean Anything?

If you’ve ever received an email from your bank, accountant, lawyer, or doctor (or any number of other professionals), you’ve also likely seen a disclaimer at the bottom of the message regarding confidentiality. It may have read something like this:

CONFIDENTIALITY NOTICE: This electronic message contains information that may be legally confidential and/or privileged. The information is intended only for the individual or entity named above and access by anyone else is unauthorised. If you are not the intended recipient, any disclosure, copying, distribution, or use of the contents of this information is strictly prohibited and may be unlawful. If you have received this message in error, please contact the sender immediately and delete the message. Thank you.

This sounds scary — but can you actually get into legal trouble if you “disclose, copy, distribute, or use the contents of” an email that contains one of these boilerplate notices? The simple answer is: probably not.

In general, for a contract to be legally binding, both parties (in this case, the sender and the recipient) have to agree to the terms. If you receive an email not meant for you, you don’t have a contract with the sender.

“Email disclaimers generally should be read as part of the message rather than as a contract that both parties have entered into intentionally,” says Terra Gross, an Illinois-based attorney and founder of Attuned Legal, LLC.

Gross points to a handful of court rulings that have found that confidentiality notices and other disclaimers do not create a binding legal agreement between the sender and recipient. In many cases, these notices may actually serve a more informational purpose, helping recipients understand a sender’s role — as a mandated reporter, for example.

“If anything else, an email disclaimer can show intention,” says Erin Jackson, a health tech and telemedicine attorney at Jackson LLP Healthcare Lawyers. “That is, they tell the recipient what the sender is thinking, hoping, and wants to accomplish.”

For example, a confidentiality notice can be used to show that your therapist made a reasonable effort to protect your personal information or that an attorney made a reasonable effort to protect privileged communication.

Gross says that email recipients will still often honour these confidentiality requests, even if they aren’t legally enforceable. In general, disclaimers of all types may have a deterrent effect. If you have no good reason to violate the terms of a notice, maybe consider upholding them.

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