Should You Be Using Email Disclaimer?
Although the importance (and validity) of email disclaimer could be debated for days – as you’ve no doubt noticed, most law firms do use them. That might be our first clue. Since solicitors are protective by nature, and emails are inherently invasive, it may follow that we should try to protect ourselves from emails gone astray (via mistaken addresses) or those who would share them with surreptitious intentions.
What exactly is an email disclaimer?
Basically, the disclaimer is specific text included with an emailed message, and crafted with the intention of limiting your liability. Frequently placed at the bottom of an email (though its effectiveness increases when it is placed in first position), the disclaimer will typically begin by putting the recipient ‘on notice’ that the enclosed contents are of a confidential nature. Next, it will relate that the email should not be read or retained by anyone other than the intended recipient.
Are there laws governing their use?
Since there is no current legal authority on email disclaimers (or email confidentiality notices for that matter), there aren’t specific regulations on their use. And so, we must rely on our common sense and personal concerns for privacy – though we do highly recommend that you consult with a corporate business lawyer if you plan to add them to your operating procedures.
According to BBC, earlier this year there was a bill introduced (under the 10 minute rule) by MP Sir Alan Duncan, proposing to ban the practice of ‘useless disclaimers’ for public bodies. “Though accepted at first reading, it is unlikely to become law in its current form without government support, due to a lack of parliamentary time.”
That said, there are certain industries which may currently (or in the near future) go so far as to require your company to make specific disclosure statements when correspondence is transmitted by email. For instance, if the privacy HIPAA compliance required by the U.S. was to be adopted in the UK, it may create a valuable template for storage security and risk assessments far beyond health care requirements.
Does an email disclaimer have legal merit?
The courts would normally give the weight to whatever substantive content is contained within the email, and the circumstances surrounding its delivery or receipt. However, a disclaimer might be useful in some cases; especially if it appears above the message which allowed the recipient to make the decision whether or not to read it. Then again, if the recipient does nothing to signify acceptance of the email, it can swing the other way.
If you plan to use a disclaimer, it’s important to say the right thing. A word of caution – you should have a corporate lawyer either review your template or draft a custom disclaimer, prior to putting one into use. The contents need to cover any specific areas of possible liability, in a way that will satisfy guidelines arising from recent case law.
Should I install disclaimer software to track my company’s use?
If you want to make your disclaimer pervasive and consistent across all of your business communications, the answer would be yes. This type of software can include an impressive variety of features, and even ensure that appropriate disclaimers are used with specific content or clients.
There are email disclaimer software companies available online, which offer various solutions. Microsoft 2007 versions and later already include Microsoft Exchange disclaimer aspects, although they are fairly basic. If you choose this route, some desirable features might include the following:
- Allows integration into your directory service
- Allows customized rules, which can be applied to a message dependent upon attributes of the sender, recipient or content.
- Allows you to limit repetitive imprints on back and forth correspondence.
- Supports all of the frequently used formats; Plain Text, RTF and HTML (letting you create 3 separate designs relevant to those formats).
- Includes an editor, allowing you to add logos and attractive contact blocks, etc.
- Ability to handle signed messages of all types and encrypted messages, fast and continuously.
Are there tips for using email disclaimers?
- Keep it concise. Limit the size of your images. Either recipient or sender may be charged by the bandwidth consumed.
- Avoid complicated HTML coding with your email branding, because it may have quite a different appearance on recipient’s systems. Simpler code will be closer to your original.
- To give you the most flexibility, your email disclaimer should be added by the same server which already handles your message transport.