Internet Newsletter for Lawyers
September/October 2002, by Delia Venables

Email Disclaimers and their Desirability
by Clare Griffiths

(see also Clare's article in the last newsletter, on webste disclaimers, here)

Not many lawyers can imagine how they ever managed without email. Apart from keeping us up to date with office gossip, it offers a cheap, easy and extremely quick form of communication with clients. Advice given in emails is clearly documented and contracts can be sent around to numerous parties for comments and amendments in electronic form at the click of a mouse. This should mean a more streamlined service for clients and more direct access to their advisors.

There are obviously dangers with email. It can prove just too quick and easy at times. What if a one-digit typo in the email address results in highly confidential documents being sent or forwarded to the wrong person? Whilst this may cause embarrassment or damage client relations, there have been a number of high profile cases highlighting various legal liabilities from email. It is now established that a firm will be liable for racist comments emailed between employees or porn forwarded around the workplace.

Aside from liability for harassment or breach of confidentiality, mistakes with emails can be catastrophic to a firm's reputation. One law firm in particular recently faced widespread ridicule when a rather riske email between a solicitor and his girlfriend was forwarded throughout the city.

So how should law firms make the most of the benefits of email whilst avoiding the worst risks? Many firms slap huge disclaimers on their email templates and hope for the best. But are disclaimers the answer?

Confidentiality

As is most common in email disclaimers, a statement that warns that the email content is confidential can protect against some inadvertent disclosures. Under English law, recipients of communication are generally then obliged not to disclose its content or use it for a purpose other than that for which is was communicated. As such, a clear disclaimer of confidentiality is recommended.

Viruses

Another common disclaimer refers to virus transmission, for which companies may refuse any responsibility/liability. Instead, the risk and responsibility is shifted from sender to recipient, who is then responsible for using adequate anti-virus programmes.

Other risks

Other threats include accidental breach of confidentiality, unwittingly entering into contracts, negligent misstatement, and employer's liability. Disclaimers can be used to attempt to get a firm off the hook in all of these cases.

Disclaimer Format

Should disclaimers be appended or prepended? This depends on the type of business that is being conducted and how secure or confidential the email in question needs to be. The strict legal view is that disclaimers should be at the very start of an email so that the recipient actually notes it, rather than it staying unread at the bottom of the page. However, disclaimers which are longer and more prominent than the average email message look heavy-handed and ultimately make the firm look edgy about its ability to deal with email safely.

Further formatting problems can arise if two people are involved in a string of communications and if the firm's/company's disclaimer only appears once at the end of the list. This means that not all the content may have been effectively disclaimed.

Alternatively, if a disclaimer appears at the end of every "reply" message, this may only help to obscure the actual subject of correspondence.

This is perhaps the point at which disclaimers start to interfere with day-to-day communications, or to appear unnecessary in a context of informal emails. Nevertheless, it is the very informality of email which necessitates extra legal caution.

What can disclaimers achieve?

The mere presence of a disclaimer can be a valuable deterrent against those who seek to take legal action against a company. A strong argument for the use of disclaimers is that prevention is better (and cheaper) than cure in cases that can potentially arise out of email (mis)usage. Furthermore, disclaimers can be a good marketing tool, conveying an image of professionalism to clients and customers.

Nevertheless, although an email disclaimer can aid your case in court or in pre-action negotiation, it does not in reality guarantee any protection since the courts can consider the substantive content and context more important than the existence or wording of a disclaimer. Some would argue that disclaimers can actually pose a different threat in themselves by lulling people into a false sense of security.

Essentially, a pragmatic approach should be taken. It is true that certain risks can be minimised by use of short, discreetly positioned disclaimers but they should only be seen as just one element of a firm's risk management strategy. More practical tools should be deployed for optimal legal protection such as imposing email policies on all staff which are vigorously enforced, email filtering, and anti-virus software.

Clare Griffiths is a specialist solicitor at niche intellectual property law firm Briffa. Email Clare@Briffa.com

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