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So what did you just read?

A disclaimer that’s what.

You probably have seen something like this before. The idea of this concept is a poor attempt to shield an entity from any form of legal repercussions as a consequence of emails as well as create consequences if that information ends up being sent to the wrong person.

What is an email disclaimer?

Let’s start from the ground up with a simple definition.

So when used in the context of an email, I suppose the intention here is to avoid being liable to some sort of consequences that could come from the contents of the email.

History of disclaimers:

For the younger readers, you may find it interesting that letters were written up and sent in an envelope.

After that; archaic machines were forged to transmit bits of information over telephone lines in order to send a document to a unique identifying address. You may never have seen one, but this machine was called a fax. They made it really easy for you to simply type in a number in order to send a document to someone by simply knowing the right numbers to use.

Shockingly, this led to a lot of people sending documents to the wrong locations.

In addition, faxes were often sent to people at hotels, where the fax would be received by a business center and delivered to a hotel room. This led to concerns that the information in the fax might be misdelivered or read by persons for whom it was not intended.

THAT is how this whole message disclaimer business began. It really makes sense in this context.

Enter the world of the email. Lawyers were sending messages that could contain “legally privileged information” and wanted some sort of similar protection despite it no longer being necessary.

However, rather than putting the disclaimer at the beginning of an email, by virtue of reasoning I cannot understand, by nearly universal practice the disclaimer is placed at the end of the e-mail. Thus, the unintended recipient would read the entire e-mail, only to discover the frightening language informing him or her of their wrongdoing.

Why do people use them now?

An email disclaimer could provide you a few things.

• potentially refuse responsibility.

• is virtually free to add on to an email.

• does virtually no harm outside of looking a bit silly.

So it makes sense why they’ve started to see widespread use; but does it actually make sense?

So here is an example email disclaimer I received once, take a look and we’ll break it down.

This e-mail is intended for the addressee shown. It contains information that is confidential and protected from disclosure. Any review, dissemination or use of this transmission or its contents by persons or unauthorized employees of the intended organisations is strictly prohibited. If you are not the intended recipient please delete this message and notify the sender immediately.

The contents of this email do not necessarily represent the views or policies of REDACTED, its employees or students.

Warning: You are about to attend this /publication’s fiiiiiirst,

“Legal Roast!”™℠®©℗tr.

Copyright © 2016 by Probably the government #drumpf2016 #byefelicia

All rights reserved. No part of the “Legal Roast!”™℠®©℗ brand may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic methods such as a website. (No, in fact definitely not a website because that would be easily accessible.) without the prior written permission of the publisher, except in the case of brief quotations or talking about how great “Legal Roast!”™℠®©℗is and other noncommercial uses permitted by copyright law. If one wishes to talk about how great Legal Roast!”™℠®©℗ is in a commercial setting, please send a messenger on horseback across the pacific ocean for 12 days and 2 nights, where he will then reach euphoria, learn to fly and forget about email which would have been a useful way for you not to keep wasting good workers. If he makes it back; pay that man! For permission requests, write to the publisher, addressed “Supreme Leader,” at the address below:

8765309 Let’s do the timewarp again avenue, LN, 01924

It’s Roastin’ time. Grab your popcorn™ now.

Let’s start with the obvious. You receive an email, and proceed to read it, you get to the bottom of the email and notice this disclaimer. It begins with the following:

“This e-mail is intended for the addressee shown.”

duh.

But let’s say this email was actually intended for someone else, how the heck would you know? It was sent to me; the addressee shown. How does one actually know if they were the intended recipient when an email is sent to them, the recipient! Are you a mind reader? Would proof need to be shown to a court room that you knew you weren’t the intended recipient at the time of unintended receipt?

“If you are not the intended recipient please delete this message and notify the sender immediately.”

And what if I dont?

Oh no! I’ve read it exactly like I shouldn’t have because the disclaimer is at the bottom of the email despite being something that should obviously be read beforehand! What do I do?

First of all, this is my blog post, I’ll be asking the questions here. Second, keep your voice down, I’m right here; there’s no need to be so loud. Third I am not a lawyer, so take this advice with a grain of salt. No this disclaimer of me talking to you isn’t like those other disclaimers from before.

So on the one hand, if I am not the recipient, I am told that I cannot act on information in the message. On the other hand, I am instructed to take particular actions in that case.

“It contains information that is confidential and protected from disclosure.”

Protected by what?! COME ON!!

Being that there is no statute or law given to provide some context as to why, and it’s only “prohibited” and doesn’t explain the nature of the consequences I can’t say that I’m scared.

Also, If the mail system always adds a disclaimer saying that the message doesn’t represent official policy… how do you state official policy by email?

It is just Wasting space.

Imagine going back and forth for just a few emails.

A message posted to a mailing list that contained exactly five lines of real content.

1: greeting
2: blank
3: a quick question, followed by a thank you
4: blank
5: <author’s name>
6: blank
7–23: LEGAL NONSENSE

This is a huge waste of space, and feels really stupid if you’ve received something like this. The signal to noise ratio is terrible!

We’re now getting to the equally entertaining, but less outlandish and ridiculous section of the blog post. Bear with me, we’ll get through this together.

So ultimately does this actually do anything?

Well, according to The Economist¹, these types of agreements are not legally enforceable.

“In the United States, several courts have ruled that email disclaimers may have a legal effect when intentionally included in an email, generally before the text of the email or in the body of the email. However, no court appears to have ruled on the effectiveness of boilerplate email disclaimers appearing below the signature line in every email².”

To cite an actual case that this author happens to find hilarious, let’s take a look at Romero v. Romero³ which pushed the limits of what can be, “disclaimed.”

One family court case spilled over into an email that stated “pay-back is really a b****” and that the recipients “still have a gigantic debt to pay to me, which will be paid no matter what.” Romero v. Romero, 2011 Cal. App. Unpub. LEXIS 8706 (Cal. App. 4th Dist. Nov. 14, 2011)³. The e-mail concluded with, “Your most determined, unstoppable, and visceral enemy.”

Below that, the email included the following boilerplate disclaimer:

“DISCLAIMER: Not one word herein should be construed by anyone as meaning violent or threatening intentions, and instead the entire contents is to be taken by the strict literary meaning. There have not been, and will be any elucidated threats of violence or intent, either expressed or implied, within the entirety of this document.”

Unsurprisingly, the recipient of the e-mail sought a protective order. The sender claimed his emails were protected by his First Amendment right of free speech and that the “disclaimer” prevented the emails from being used as the basis for a protective order. The court explained to the sender that his documented threat and harassment of the recipient would not be ignored “by simply putting a disclaimer on it.”

“L O L, Nah son.” — California District Court.

Suppose we ignore my previous citations and take these disclaimers at face value.

It may be a little paranoid to be using these from a legal perspective anyway. An incredible amount of trust is already given to the internet and the different servers that move your emails across the globe. Yes, we can fight this with PGP encryption and other techniques, but it can only get us so far if a determined third party were to obtain our data.

Consider for a moment sending an overnight mail package: Have you ever read the delivery contract? (I already know you haven’t read the EULA for half of the websites you were on today, let alone one for this site) Most likely, it gives the carrier the absolute right to open the package for almost any reason. How good is the security of that package along the way? Who might be opening your package and reading the contents?

In actual fact, the likelihood of a particular email message being intercepted by a truly interested party is relatively low. That being said you, as either a lawyer, or as a representative of an interested party in this particular communication, have an obligation to take reasonable steps to protect the confidentiality of theoretical client information.

So, in summation, Email disclaimers are unnecessary.

Thanks for reading!

The following parody email disclaimer has been left as an exercise for the reader.

Disclaimer: This email is intended for the use of the individual addressee(s) named above and may contain information that is confidential, privileged or unsuitable for overly sensitive persons with low self-esteem, no sense of humour or irrational religious beliefs. If you are not the intended recipient, any dissemination, distribution or copying of this email is not authorised (either explicitly or implicitly) and constitutes an irritating social faux pas. Unless the word absquatulation has been used in its correct context somewhere other than in this warning, it does not have any legal or grammatical use and may be ignored. No animals were harmed in the transmission of this email, although the yorkshire terrier next door is living on borrowed time, let me tell you. Those of you with an overwhelming fear of the unknown will be gratified to learn that there is no hidden message revealed by reading this warning backwards, so just ignore that Alert Notice from Microsoft: However, by pouring a complete circle of salt around yourself and your computer you can ensure that no harm befalls you and your pets. If you have received this email in error, please add some nutmeg and egg whites and place it in a warm oven for 40 minutes. Whisk briefly and let it stand for 2 hours before icing.

References:

• “Spare us the yadda-yadda”, The Economist, 9 April 2011

• “The Legal Effect of Boilerplate Email Disclaimers”, RHLaw, 26 March, 2012

• “Romero v. Romero.” Court of Appeal, fourth appellate district division one state of California, D054548, 14 November 2011

Additional resources:

• Setting up PGP for your computer’s email for those interested in obvious and powerful email security