Reading the small print – are e-mail disclaimers really important?

January 27th, 2016
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Rajpal

By Jesicca Rajpal

E-mail disclaimers have become so routine and monotonous, often referred to as boilerplate language, that most people do not even notice their existence. Yet, these disclaimers are ubiquitously appended to nearly all outgoing e-mails. The reasons for such inclusion are various: Confidentiality, defamation; unintended contract formation; misdirected e-mails, employee liability, legal privilege; infringement of copyright; and other wrongful acts are a few reasons for its inclusion. Despite its wide use, there is currently no legal doctrine or theory under which an e-mail disclaimer is enforceable in South Africa and nor has it been tested in any South African court.

Today, the value and effectiveness of e-mail disclaimers has remarkably diminished because of overuse. Disclaimers are attached extensively to virtually all electronic communications, whether appropriate or not. Such behaviour can possibly be ascribed to the fact that the disclaimer is appended automatically when the sender presses the ‘send’ button and, as a result thereof, one even finds them on casual lunch and dinner invitations sent by e-mail. This often results in a situation where the sender is completely ignorant of the existence of the e-mail disclaimer or what it says. With regards to the recipient on the other hand, he or she is unlikely to read the small print in an e-mail, especially where it follows the content of the e-mail. He or she is, therefore, unlikely to even read or spot the disclaimer since it appears at the very bottom of the e-mail. Furthermore, unintended recipients are called on to delete the e-mail if they are not the intended recipient. This request appears unrealistic. In the first instance, senders have no control over the actions of the recipients after receipt, and further, even if recipients comply with the request to delete the communication, such communication can still remain on the recipients computer system elsewhere. Nevertheless, even if the parties do read the contents of the e-mails, including disclaimers, it is unclear what the precise extent of the disclaimer may be and questions could arise as to whether the disclaimer applies to only the wording in the e-mail or does it cover any attachments to the e-mail as well. Essentially, the nature of the disclaimer dictates a unilateral act and one would need to consider whether such act is binding, as the other party did not have the opportunity to consent to such terms. Further, e-mail disclaimers use standard, generic wording. It is not tailored to meet the individual requirements of the particular situation but is rather appended to the e-mail indiscriminately. Since the disclaimer is sent in such a generic manner, there may be a complete contrast between the intention of the parties and the proviso in the e-mail disclaimer.

This is precisely what the California Court of Appeal had to consider in the unpublished case of Romero v Romero 2011 Cal, App. Unpub. Lexis 8706 (Cal. App. 4th Dist, Nov. 14, 2011). In this case, the plaintiff applied for a domestic violence protective order against her husband alleging that he had repeatedly sent her e-mails threatening to kill her. In one of the e-mails, the defendant sent to the plaintiff, he wrote ‘pay-back is really a b****’ and ‘you and your others still have a gigantic debt to pay to me, which will be paid no matter what. I spend every second of every day contemplating an appropriate method of payment’. The e-mail ended with the following statement: ‘Your most determined, unstoppable, and visceral enemy’. Further, at the bottom of the e-mail the following disclaimer appeared:

‘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’.

The husband claimed his e-mails were protected by his First Amendment right of free speech and also claimed that, as a result of the disclaimer included in the above e-mail message, these acts could not be the basis for a protective order. The court was not convinced and explained to the defendant that: ‘You can’t send documentation of both a threatening and harassing manner and then think that you can get away with that by simply putting a disclaimer on it’. Clearly, a sender of e-mails of such a nature should not attempt to hide behind an e-mail disclaimer; a disclaimer will do nothing to shelter a person who sends e-mails of a threatening or harassing nature.

Similarly, the European Union Technical Board found that an e-mail in Phillips [2012] E.P.O.R. 41, was not confidential despite its disclaimer, due to the fact that the disclaimer was automatic. In establishing the sender’s intent to keep information confidential, the board stated:

‘General email disclaimers asserting among other things confidentiality of the content and that the content was intended for the recipient only had almost no value and provided little guide as to the sender’s intent. Firstly, they were almost always added indiscriminately to all emails, whether confidential or not, usually automatically. Secondly, such disclaimers could not unilaterally impose a duty of confidence on a reader who might not agree with them’.

The board stated that generic e-mail disclaimers were not useful in evaluating the confidentiality of a message but rather the recipient had to ‘decide for himself based on the email as a whole whether or not it was reasonable for him to keep its content secret’. The board went on to state that:

‘If the recipient did not agree to keep something secret, secrecy could not be imposed unilaterally (e.g. a blanket footer asserting “confidentiality” in all emails from the sender was not enough). … The nature of the relationship might be relevant to whether a third party reasonably knew the message was secret’.

In this case, the e-mail contained a two-part disclaimer at the bottom of the message. The first part was more personal to the sender and stated ‘Confidential information may only be sent to me by e-mail if your e-mail mailbox is within the akzonobel.com server’. The second part was a standard corporate e-mail disclaimer, which is added automatically to every e-mail from the company, which could not be removed or edited. It stated that: ‘“[R]etention, dissemination, distribution or copying” of the email by anyone who was not the recipient, was prohibited’. The court stated that these disclaimers were not ‘internally consistent’ as, ironically, the first part indicated that the e-mail might not be a safe method of transmitting confidential information, whereas the second part tried to affirm the confidentiality of the information, contrary to the fact, that these were the very activities that a recipient might be required to perform. The court held that: ‘[S]uch a person could not accept the terms of this disclaimer (which in any event was not a contract) and they could not be imposed unilaterally on him’. This case elucidates that useless inclusions of standard, automatic and inappropriate wording in disclaimers will not simply translate into binding contractual terms.

Recent case law

In the recent case, Langley (Township) v Witschel 2015 BCSC 123 heard at the British Columbia Supreme Court during January 2015, the court considered e-mail disclaimers and whether its inclusion in an e-mail resulted in admission of liability. The facts of the case were briefly as follows: The plaintiff, a municipality, alleged that on 13 October 2011, a traffic signal controller was damaged as a result of being struck by a vehicle operated by the defendant. The plaintiff sent the defendant’s insurer an invoice for replacement of the controller and wrote e-mails to follow up on unpaid invoices. The defendant brought a motion of dismissal on the basis that the claim had prescribed. The plaintiff acknowledged that the claim was filed beyond the two-year limitation period, but stated that the defendant had confirmed the cause of action in two e-mails sent before expiration of the limitation period. The defendant asserted that the e-mails contained disclaimers and thus could not be read as admissions of liability. In this case, the court had to specifically consider the effectiveness of a disclaimer located at the bottom of an e-mail that appears to be an automatic addition or attached to the communication. The court held that:

‘While the location and font of the disclaimer in the present case does leave the impression that it is automatically generated, I do not see that this means the language must necessarily be ignored. It depends on the situation. If the disclaimer directly contradicts the substance of the e-mail and has been used in a multitude of communications between these parties, regardless of their purpose, then the overall impression left on a reasonable person may well be that the disclaimer language is to be ignored in favour of the substantive message’.

Nonetheless, the court concluded that, in this particular case, it did not have any evidence showing a use of the disclaimer in communications between these parties that is ‘so automatic, and perhaps inappropriate’, which would ordinarily result in the disclaimer being meaningless. However, the court did state that the placement of the disclaimer, namely, at the bottom of the e-mail, and its differing font, could cause a reasonable person to give less weight to it in considering the e-mail as a whole. From the above, it is apparent that a court will not look at a disclaimer independently but will consider each situation individually taking into account the substantive content of the e-mail as a whole, including a disclaimer, before it reaches a conclusion on a specific issue. The above case provides a clear warning to drafters that should an e-mail disclaimer be drafted and appended in a manner that is ‘so automatic’ and ‘inappropriate’, such disclaimer could be rendered ‘meaningless’.

Joshua L Colburn, in his article ‘Don’t Read This If It’s Not for You: The legal inadequacies of modern approaches to e-mail privacy’ (www.minnesotalawreview.org, accessed 11-12-2015), states that as most users place e-mail disclaimers at the end of their messages, such placement questions the effectiveness of the e-mail disclaimer. He advises that such placement is analogous to the unringing of a bell; one cannot go back and unread the contents of the e-mail, it is simply irrevocable. Colburn recommends placing the disclaimer at the beginning of the e-mail, namely, before the contents of the e-mail. For attorney/client privilege, he proposes that an additional notice be placed in the subject line stating that the message is a privileged communication. He suggests further that where one is dealing with private information, such information should be placed in a separate e-mail attachment, with the body of the e-mail restricted only to the wording of the disclaimer. He advises that the e-mail disclaimer should again be reiterated at the top of the attached document. This, he says, will maximise the effectiveness of the disclaimer. I agree with Colburn that such prominence and placement of the e-mail disclaimer will improve the chances of the disclaimer being read and noticed by its recipient, resulting in compliance therewith. Colburn also suggests that where one is dealing with sensitive information, encryption should also be considered.

There are many extenuating reasons for including a properly drafted and positioned e-mail disclaimer in electronic communications. Users of e-mail disclaimers might do well to use them sparingly, only when required and in appropriate situations, taking care to avoid misuse of disclaimers. To achieve this, every company should undertake a review of its information security systems, policies (especially its e-mail usage policy) and guidelines in order to take appropriate preventative measures to limit the detrimental effects of a poor e-mail disclaimer. Finally, the question as to the legal validity and enforceability of e-mail disclaimers in South Africa, is left at the discretion of our courts. Since the Constitution allows for international and foreign law to be considered when a question of interpretation is placed before the courts, it will in all likelihood follow the route adopted by other countries in establishing the case law with regards to e-mail disclaimers; it will decide on a matter pursuant to its investigation into the surrounding circumstances, taking into account the content and context of an e-mail message, considering the e-mail as a whole, including the e-mail disclaimer, before it reaches a decision.

  • An earlier version of this paper was submitted to Wits University for the Cyberlaw course, in part fulfilment of the requirements of LLM degree.

Jesicca Rajpal LLB (Unisa) is an attorney at TP Mabasa Attorneys in Johannesburg.

This article was first published in De Rebus in 2016 (Jan/Feb) DR 30.

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