Are Email disclaimers binding?

There are a number of reason:
1) Non-repudiation - You cannot say with 100% certainty that you got the email, copied, and/or that you forwared it on.

2) Email is done in plain text. ANYONE can copy the message in transit or otherwise.

3) You didn't sign an NDA, so how is this binding? As far as I know, unless you sign an NDA or something of the sort, there is no legally binding contract.

4) You have implicitly signed this contract by open the email, right? I don't think so...or we couldn't fight spam.

All in all, I think these "EULAs" for email are bogus, but I really wouldn't want to have to deal with the hassle to prove it ;-)

Yes. Reason: 1) clearly stated in the e-mail, that their desire was to do so. 2) it could be copy writen, (or at least copy protected by CC) in being propritory in the companies purpose. 3) It would also be dependent on 'Their' location. (The originating jurisdiction, alowing it to be so). In Europe it is alowed. Here in Germany, an e-mail can also be used as a binding contract. As to the must 'delete immediate' part, no. And that can not be enforced. (legally) It could than through off the whole clause. (un-solicited e-mails are the property of the reciever, even if krap, spam.)

edited to add: IMHO, naturally ;\ -d

Normally things like this must be 'signed off' on by the parties involved to be enforceable. I think it's either an attempt at CYA thing (I don't see that working either), or simply someone who wants to look important.

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The immediate problem I see is this, if you send it to me by accident, or it gets forwarded to me by someone, then I am the intended recipient, ergo, your disclaimer means nothing. Its not my problem if you get the wrong email address etc etc.

My opinion for what its worth.

The problem that I have is that the vast majority of such warnings state that it is intended for the addressee. Since very few emails have anything in the body indicating specific addressees, that pretty well means anyone it is forwarded to, in addition to the original recipients designated by the originator.

I tend to collect the more creative ones, though. Here's one that I particularly enjoy:

IMPORTANT: 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 humor, or irrational religious beliefs. If you are not the intended recipient, any dissemination, distribution or copying of this email is not authorized (either explicitly or implicitly) and constitutes an irritating social faux pas, you gormless and ugsome fool. No animals were harmed in the production and transmission of this email, although the kelpie next door is living on borrowed time. If you have received this email in error, please carefully fold it until all corners, cover with duct tape and plastic wrap, and place in a quiet, dark drawer until you are contacted with further instructions.

sounds like it is pretty much in line with everyone else here.

Just like in the mail, if someone sends you something you didn't ask for, they can not charge you for it if you don't return it.

And yes, as I have not signed any agreements with the sender, I am not bound by their policies.

I didn't think there would be any kind of legal backing, but I see it so much these days that I just had to ask if anyone knew about something to say otherwise.

Thanks everyone.

Oh yeah EnBee, just because someone sends me an email does not make it confidential. (In my mind at least)

If there is a clear understanding where I ask you not to share the information with anyone else and you agree, then it would be a direct betrayal, and I would have to send you to hell..... :p

If it is clearly personal information, then again, descression is adviced.

In the case of oneUNAW, she was just nuts. When someone is clearly suffering from being a raving lunitic, all bets are off. Not sure if you had noticed though, I was fairly quiet except to get new comers up to speed when they would show up late for the party. I left most of the byting to Dawg. :D

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I'd be interested to know whether anyone has tried to test this in court.

There must be a parallel with, e.g., finding a letter someone dropped in the street.

It probably depends on the legal regime in which the recipient lives - Human Rights / Civil Liberties law, etc.

In some cases there may be a *duty* to report any illegal activity to the Proper Authorities.

And in some regimes (notably in the USA), a court may require corporate defendants to produce copies of internal emails.

Here's another thought: if you include a quote in an email which is subsequently found to be libellous, could you also be liable?

Strictly for the purpose of covering my fanny I have my email set up to add a disclaimer to every message I send. If I send personal info or proprietary info I've covered Jack. If someone raises a fuss let Verizon's lawyers sort it out.
JackM

Had an client who threatened to sue me if I didn't immediately return all copies of a financial document that he inadvertantly sent to me electronically. Lawyer said that the same principal applies as with sanil mail; if I send you something unsolicited to you, then I cannot subsequently require you to make payment for or act in accordance with the demands of the document. He used a bunch of really big words, and quoted a bunch of impressive references, and the judge ordered the former client to pay my legal fees. The silly thing is, when I got the document I deleted and wiped it, and then let him know that he had sent it to me. His position was that I had to return the documents to him, he just couldn't get aroung the whole magnetic particles have been randomized thing. Oh well, I wasn't making any money off of that account anyway.

In order for a "confidentiality agreement" to be legally binding, it
has to meet the standards of any other legally binding contract
-- including, amongst other things, that all parties involved have
to agree to it beforehand. You didn't agree to that disclaimer; it
was thrown in your face after the fact. Therefore, you are not
bound by it.

By way of comparison, if I sent you an email that said, "By
receiving this email, you are required to immediately give the
sender ten thousand dollars", how binding do you think *that*
would be? It's the same principle.

Besides which, when someone sends you an email, even if they
send it to you by mistake, it becomes your property, and you are
free to do whatever you like with your own property.

Now, here's my *own* disclaimer: I am not a lawyer, but I am an
IT professional with some experience dealing with privacy
matters and the like WRT computer and Internet usage.

I get these all the time as I deal with Personal Health Information.

As someone else pointed out, it does somewhat cover the butt of the sender in case of accidental disclosure of confidential information to unauthorized parties.

However, to the best of my knowledge, there is no legally binding requirement on the part of the inadvertent receiver to comply with the wishes of the sender.

In all actuality, these disclaimers take up a bunch of useless space in storage, inflate the bulk of transmission, use up valuable bandwidth with no real ROI.

On the other hand, it's not ethical conduct to reveal information sent to you that could cause harm to the sender or to the person the information refers to, unless it is for the 'greater good' of the community. And really not even then unless not revealing the information could cause more harm to the community than to the individual.

And isn't it considered immoral to repeat confidences shared with you when requested to not do so?

Think about it.

Recent UK case law says that an email must be signed with the authors name or other signature (e.g. initials) and this needs to be manually typed in and not part of an automated signature file that you can easily setup within outlook or at your email server. Without this personal signature, then the whole email is not legal.

I use disclaimers to demonstrate what views or actions my company does. All you must remember to use the word MAY and not WILL/DO as you could be held responsible for any failings on your part.

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Email disclaimers are not contracts at all they are handled under the law as "Noticing" a utah court has ruled that if they meet the following criteria then they can be upheld.

i. the disclaimer appears at the top rather than the bottom of the email. In this way, the email comes to the attention of the recipient before he/she has read the contents of the email so that in the same way as a fax front sheet disclaimer, the recipient can make an informed decision whether to proceed to read the contents.

ii. if the recipient has had previous correspondence with the sender of the email, the recipient may be taken to have digested the contents of previous email disclaimers and it would be reasonable to conclude that he/she received the email with full notice of the standard disclaimer and could have refused to continue the correspondence exchange should he/she have been unwilling to accept the terms of such disclaimer.

iii. the actual contents of the disclaimer are important. It must cover the various areas of potential liability in such a manner as to satisfy the relevant guidelines which have arisen from recent case law and, also, statute, such as the Unfair Contract Terms Act.

The firm I work for has just in the last few months won a very large suit in regards to a reporter using the content of an email the had a disclaimer attached, how ever it is being appealed and will probably be the first Email Disclaimer case to go to the united states supreme court. So in reality I think the jury is still out on this until there is a SC ruling.

The disclaimer provides the recipient with a statement of intent. I do not believe that it is enforcable unless I receive such an email from within the network- eg., I receive an email through the corporate system.

I insert my return email address and desk phone into the disclaimer as a way to provide alternatives to the possible recipient.

In financial groups or financial services groups, we have a similar statement on the cover sheets of any document produced that deals with NPI data, or strategic corporate direction.

From the HIPPA standpoint, the disclaimer provides a statement of intent that the information is considered to be protectable and that the sender is making an effort to protect the information.

When I was nursing, I was never permitted to have a conversation regarding a patient outside of the hospital- and even then was governed by "need to know". So I could tell the incoming caregiver the facts of your case, but could not under any circumstances offer an opinion while giving factual information. The goal was to insure that an opinion was not presented in any way that it could be misconstrued as fact.

All that said, with very few exceptions, I do not repeat to anyone those communications that I have a reason to believe are priveleged- that would be almost all. The only time I will step outside of that rule is when I am trying to assist someone and strongly believe that another person's input will help. In those cases- rare- I tell the person first that I intend to engage someone else and get their feedback first. If we agree that engaging another person is acceptable, I will move forward.

A side note. According to SOX, GLBA, and HIPPA, if an email contains NPI data, it is not sufficient to add the disclaimer. You must also encrypt.

But I've been advised to add one to every outgoing e-mail relating to business.
While there currently is no Case Law available there is an Implied desire to prevent information from being passed on to the wrong hands.

More importantly as a business if you make a mistake and send the wrong info to a person you have covered yourself.

However as things do go astray and an e-mail may not be delivered to the intended recipient or the senders address book may have become corrupt there is a need in the Business Community to at the very least make the recipient aware that you do not wish this data incorrectly sent to be passed on and the business has demonstrated this by adding the Footer in any potential Legal Action that may be taken against them.

To me it's more a [b]Butt Covering Exercise[/b] than anything else and as there are the [b]Legal W H O R E S Drawing[/b] them up someone at least seems to think that they have some merit. :^0

I've just remembered a case where a company supplied NB to a sales Rep who was constantly on the road and he was allowed to receive personal E-Mail on the NB was settled out of court about 18 months ago after the sales rep resigned and the company involved misused some personal data on the Stored E-Mail Client. The matter related to the Sales Mans Bank Account Information and was considered as not worth the expense of fighting by the companies Legal Representatives or maybe they just didn't want to set a Precedent with that case so they advised the company to settle.

It was a messy case and there is no doubt that the person at the company involved had done the incorrect thing. Family Business where the Wife runs the Accounts are never a good idea in the first place anyway but this was a particularly bad case of the wife doing the wrong thing. What I couldn't understand about the entire exercise was that they had misused some Bank Account Information supplied via E-Mail when they where actually paying Retainers & Commission into the same Bank Account so they already had the information and didn't need to steal it from an e-mail.

They have since gone broke because the Accounts Manager was double charging for some Government work. That may have been the reason that the Legal People decided that it was better to Settle rather than have it reach the court. I'm not sure of the details as I was interviewed as a potential witness by the Federal Police so I stayed well clear of the entire mess. :(

Col
[i]Edited to add the last bit about the Out Of Court Settlement. {/i]

The incident you are refering to is not funny, and your pulling it in here doesn't change that.

First, I haven't read all the posts so far, low speed dial up so I'm not using my little bandwidth. Also a lot of this has been covered in one of the threads on HP.

First things first - a lot depends upon the laws covering the jurisdictions in which it is sent, and the laws where it's received. Whatever, the laws are, unless there is a specific law on emails, it will be covered under the general copyright laws of both locations. it's a document, the same as if written by pen on paper, and thus the IP belongs to the sender. If a corporate document, it belongs to the company.

About 10 years ago there were to landmark cases in the USA, I belive one went to their supreme court. In each case, internal emails were sent between middle level management and spoke badly about certain competitors, copies ended up in the hands of the competitors. They sued, they won and got paid damages, the courts upheld that they were valid corporate correspondence, the same as a writtne memo. In one case they found out who leaked it, and that person was sacked without notice, they sued for unfair dismissal under their states laws, they lost, the courts found that sending corporate documents to the competition was fair grounds for sacking without notice.

Many european countries, and Australia, have had cases where the courts have held that electronic documents have the same standing in law as written ones.

the use of the legalise you quote initiated in North America some years back as a response to some of those court cases. How liable you would be if you passed an email like this that was not intended for you, and you passed it to the newsmedia and they published, would be a matter for the courts to decide, at the least, they could deal with it as theft by finding. Most countries have a law that requires you hand to its lawful owner, anything that you find, if the owner can be identified, if not, you're suposed to give it to the police - lost and found.

Think of it this way, if you receive a letter from a company, that's addressed to the previous tenant of the house you rent, you have no legal right to open that letter, or to keep it, or to hand it to a third party. You can lawfully, hand it to the adressee, return it to the sender, or hand it to an authorised agent to send it on to their new address, usual the estate agent or the postal service.