Confidentially, E-Mail Disclaimers Are Just Dumb

This message is for the sole use of the intended recipient. If you have received this message in error, you will immediately destroy it, cut out your tongue, and slash your wrists.

Do e-mail confidentiality notices serve any real purpose? Do they actually have any legal standing? And if not, why do so many people — particularly lawyers — routinely append them to all the messages they send out?

While this has been bugging me for years, my readers have been discussing it lately because of a recent story that involved a confidentiality notice in a form letter from graphics vendor EVGA denying a warranty claim. While EVGA eventually took care of that reader’s issue (and EVGA president Andrew Han told me they’ll remove the disclaimer from all their e-mail because they “are not going to do any good” anyway), it turns out that confidentiality notices in general have their defenders.

Not surprisingly, many of those who think these confidentiality disclaimers are a good idea are lawyers. “We advise all our clients to put a similar notice on all their e-mail and faxes,” wrote one attorney. “Electronic communications can fall in the wrong hands, and this simply warns an unintended recipient who might otherwise try to take unfair advantage of the mistake. I can’t imagine any court would rule otherwise.”

Others aren’t quite so sure that the notices are enforceable in court but think they might be a good idea anyway. “Like so many things in law, the reason the boilerplate language exists is to minimize risk and provide cover if something goes wrong,” another reader wrote. “A lawyer can say, look, the offending party can’t claim ignorance that he shouldn’t have distributed the sensitive email because he was put on notice by the language in the boilerplate. Open any book published in this country and the copyright symbol is there along with a statement of copyright infringement. They’re completely unnecessary, not legally required yet they’re there. Why? Because lawyers are risk adverse and they’d rather the publisher print the symbol/statement under the theory that it doesn’t harm and can only help. I think the same goes with the boilerplate language.”

Many others feel like EVGA’s president and don’t believe the confidentiality notices serve any real purpose. “These e-mail disclaimers aren’t worth the electrons they’re printed on,” wrote one reader. “It’s just like the software EULAs. Before you can even see it, you are somehow bound by the terms of this supposed contract.”

The confidentiality notices certainly seem to have what the lawyers would call contract formation issues. “I don’t see how a person who receives a stray message can be deemed to have entered into a contract obligating her to keep the message confidential because there’s a notice at the end to that effect,” wrote another reader. “I’ve never used confidentiality notices on e-mail or faxes. I figure that if you don’t do it automatically, you’ll forget it on the ONE message/fax that goes astray. And if you do it automatically, a court will rule that it’s meaningless because you put it on non-privileged, non-confidential messages. And a lot of messages that are clearly personal and trivial have such notices on them. You cannot unilaterally impose a contractual obligation on someone by giving him a piece of paper that says by looking at the piece of paper he is bound by the terms stated in it. But just in case it would be binding on the recipient, I’ll stick in right here a notice that by reading this message you owe me dinner at Nick’s Fishmarket next time you’re in Chicago.”

If you do get an e-mail by accident, you are of course barred from doing some things by law – identity theft or trade secret violations, for example – whether or not there’s a confidentiality notice on it. But can you be obliged to follow the sender’s instructions in an unsolicited message? Spammers would certainly love it if that were the case. If lawyers reduce their legal risk one iota by attaching a confidentiality notice to an e-mail, why wouldn’t it be so for scammers as well, particularly since those two groups aren’t entirely mutually exclusive?

If you read this column by mistake, you are hereby required to post your comments below or write me at Foster@gripe2ed.com.

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