Why Use Email Disclaimers?

What they protect against, other forms of protection and why email is more of a liability than traditional methods of communication.

Email disclaimers don't stop anyone who shouldn't read your emails reading them. They don't prevent legal repercussions caused by problematic email content. So why do so many big companies and government agencies use them? Why is it actually illegal for some organisations in the US NOT to use them?

What email disclaimers DO do is show that every effort has been made to send the right information to the right person. This can mean the difference between being sued for a six-figure sum and the case not even getting to court. There is now precedent for this. Disclaimers are the most effective protection at present.

What Disclaimers Protect Against

1. Legal Action

The sender, their company, the directors and the ISP could be sued for the content of their corporate emails causing the following:

• Transmission of Viruses
  Sending an infected email could damage the recipients systems. This could be intentional or otherwise. The virus could even send the email itself.
• Accidental Breach of Confidentiality
  This could be caused by, for example, forwarding a confidential email to an unauthorised person. Forwarding to an invalid address could have the same result, if the postmaster receives it.
• Transmission of Liable, Obscene, Offensive or Defamatory Material
• Negligent Misstatement
  If bad advice is given, the company is liable for its effect.
• Breach of the Data Protection Act
  This can be caused by thoughtless transfer of data.

There is now precedent for this, involving settlements of six-figure sums.

2. Breach of Confidentiality

If you send an email and the recipient breaches the confidentiality of its contents, your company can take legal action against them. A disclaimer with a confidentiality clause not only significantly increases the chances of taking successful legal action but discourages the breach in the first place.

3. Entering into Contracts Accidentally

Binding legal contracts can be formed via email. Casual agreements can easily be made without managerial sign-off.

Other Forms of Protection

The most important step is to ensure that an appropriate disclaimer is included with each email. Apart from this, other precautions that could be taken are:

• An Email Policy
  Have an official and well publicised email policy within your company. Including guidelines on the acceptable use of email, use of personal email and
• Clean Systems
  Make sure your systems are clean. This could involve the use of anti-virus, anti-adware/spyware software and an effective firewall among others.
• Sensitive Information
  You should consider not sending this by email.

Why Email is Such a Liability

Many, but not all, of the liabilities of email use in business exist with traditional forms of communication such as letter. However, email technology has increased these risks to significant proportions due to the following:

1. Ease of Transmission
   There is a general lax culture of email use due to its ease of transmission. Content is generally less structured and considered. This can result in the thoughtless transfer of information and data, and transmission of inappropriate material.
2. Lack of Privacy
   The privacy of email communication has been likened to that of the postcard. For example, emails sent over the internet can now be read by government organisations. This is particularly relevant to security issues and tax and competition law. Although also applicable to some forms of traditional communication, courts can now order a business involved in litigation to disclose its (potentially embarrassing) emails.
3. Ease of Masquerading
   Employees, maliciously or otherwise, hackers and viruses can easily make emails appear as if they've been sent by another person.
4. Ease of Erroneous Transmission
   Emails themselves, not just the information within them can easily be sent accidentally. For example, you could misspell the address or include one by mistake. Viruses or malware can even send emails from your system without you knowing.
5. High Risk of Delivery Delays and Failure
   This could be due to the recipient being absent or system failure, which won't necessarily produce an error message.
6. Possibility of Damage to Recipient's Systems
   Apart from letter bombs, traditional forms of communication generally pose little direct threat to the recipient. Viruses, however, can cripple businesses for prolonged periods.