Email: Should you use an email disclaimer?

Not every company uses them, but you may find an email disclaimer either pre-pended or appended to an email. These statements are usually of a legal character but can also be used for marketing purposes.

Here’s an example of an appended email disclaimer:

DISCLAIMER: This message, including any attachments, is intended only for the named addressee(s), and may contain information that is confidential, privileged or otherwise protected from disclosure. If you are not a named addressee or authorized to deliver this message to an intended recipient, you are notified that any dissemination, distribution, copying or other use is strictly prohibited. If you have received this message in error, please notify me immediately, and permanently delete or destroy it and all attachments, copies and printouts. Thank you.

Why do you need a disclaimer?

You might decide to add disclaimers to your emails for legal or for marketing purposes. In this article we are focused on the legal.

If you were to be so unlucky to be sued for the contents of an e-mail, it is not certain whether an email disclaimer will protect you from liability in a court of law. However, it will certainly help your case and in some situations might exempt you from liability. More importantly, it may well prevent the actual occurrence of lawsuits against your company since the mere presence of the statement might deter most persons from seeking legal compensation from your company. Therefore the use of disclaimers is always recommended. There are six legal threats that disclaimers can help protect against:

1. Breach of confidentiality: By including a disclaimer that warns that the content of the email is confidential, you can protect your company against the exposure of confidential information. If the receiver breaches this confidentiality, they could be liable.
2. Accidental breach of confidentiality: If an employee were to receive a confidential email from someone and by accident forward it to the wrong person, the employee, and therefore the company, could be liable. This can easily happen. For instance a wrongly addressed email can be forwarded to a postmaster, who might not be authorized to read the mail. Furthermore, email can easily be intercepted. If you include a statement at the end of your mail that the message is only intended for the addressee, and that if anyone receives the email by mistake they are bound to confidentiality, this could protect you.
3. Transmission of viruses: If an employee sends or forwards an email that contains a virus, your company can be sued for this. Apart from implementing a good virus checker that blocks viruses entering and leaving the company via email, you can also warn in your disclaimer that the email can possibly contain viruses and that the receiver is responsible for checking and deleting viruses.
4. Entering into contracts: Written communication, including email, can be used to form binding legal contracts if the individuals have actual or apparent authority to do so. If you do not wish certain employees to be able to form binding contracts by email, you could include a statement that any form of contract needs to be confirmed by the person’s manager.
5. Negligent misstatement: By law, a person is obliged to take care when giving advice that a third party relies on. If an employee were to give professional advice in an email, the company will be liable for the effect of the advice that the recipient or even third party, reasonably relies upon. A suitable disclaimer could protect your company from this kind of liability.
6. Employer’s liability: Although a company is ultimately responsible for the actions of its employees, including the content of any emails they send, a disclaimer can decrease liability; if a company can show that it has correctly instructed its employees not to send libelous, inappropriate or defamatory statements this could help in disclaiming responsibility if an employee breaches these rules. A company can demonstrate this by including an email disclaimer to that effect, and by implementing an email policy that clearly warns employees against misuse of e-mail.

Please note: There is no disclaimer that can protect against actual libelous or defamatory content. The most a disclaimer can accomplish in this respect is to reduce the responsibility of the company, since it can prove that the company has acted responsibly and done everything in its power to stop employees from committing these offenses.

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