TSC Insight: Do Email Disclaimers Matter?

By Michael Santarcangelo with Patrick G. Romero

If you’re like me, you routinely ignore the email disclaimers that many messages seem to have attached to them these days. For the most part, disclaimers have been added by the company, automatic and out of the hands of the users. Some users include their own, both serious and sometimes to be funny. I’d more or less accepted that some used them, while others didn’t – but paid little mind to the question – do email disclaimers matter?

During a breakfast a few weeks ago, a friend of mine shared a situation in which a business email sent to an individual was later posted to a website (by the recipient). In this case, it wasn’t really a big deal, but then he asked me if he needed to start using an email disclaimer.

It’s been a while since someone asked me if they needed a disclaimer, and my instinct was that it simply wasn’t necessary. Rather than give him a wrong answer, I promised that I’d look into it. With the help of Patrick Romero, this is what we found:

Some Background on Disclaimers
Turns out these disclaimers can be used for a whole list of things – from breach of confidentiality to transmission of viruses to employer’s liability. However, the most common type of disclaimers are those that guarantee the privacy and confidentiality of documents. They usually look something like this:

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.

With the prevalence of e-mail communication, statements like these have become more and more ubiquitous among private and public companies – the majority are automatically generated whenever a user sends out any information regardless of the content of the message.

So now that we have examined the basis for email disclaimers, let’s dig deeper and explore if they provide any value or serve any purpose.

Can e-mail disclaimers guarantee the privacy and confidentiality of documents?

Generally speaking, e-mail disclaimers are not legally enforceable.

The misconception that they are stems from a lack of knowledge that surrounds the interception of electronic communication. The relevant statute that supports this belief comes from the language of the Electronic Communications Privacy Act of 1986 (ECPA) which includes language that criminalizes the interception of electronic communications. However, ECPA defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” A narrow reading of the statute would insinuate that only information that has been acquired illegally can be found to be intercepted.

One of the many courts that have defined “intercept” this way is the 8th Circuit. The Court held that electronic communications that have reached their destination are ineligible for interception and, therefore, are outside the protections of the ECPA. As a result, unless an e-mail has been intercepted in transit, the ECPA will not provide legal authority for individuals seeking to prevent disclosure of a misdirected e-mail.

If you are concerned about the privacy and confidentiality of your email, we offer three basic considerations:
1. Use encryption
2. Use the “envelope within an envelope” approach
3. Write carefully, review and think before pressing send

1. Can encryption provide privacy and confidentiality email?
I have spent a lot of time reminding people recently that “solutions follow requirements” – and I’m always hesitant to recommend a solution without understanding the requirements. However, if you are concerned about the privacy and confidentiality of your email communications, you probably need to investigate the use of encryption.

I have always enjoyed learning about and teaching encryption – and while it can be a double-edged sword, it offers the safest means of ensuring privacy of email communications. In general usage, the message is encrypted (and signed in most current applications) before being sent. In a properly constructed and managed solution, only the designated recipient has the ability to decrypt and verify the message – ensuring the confidentiality of the transmission (this is an overly simplified explanation – if you’re thinking about using email encryption, give me a call and we can talk about specific details).

Encryption solutions are available for commercial and personal use. If you’re looking at this for corporate use – please start with your requirements and then select your solution.

2. It’s all about positioning
If you’re convinced that you need to continue to use a disclaimer, then you might consider where you place it. Arguments have been posed that by placing the disclaimer at the bottom of the e-mail, the user is undermining the enforceability of the disclaimer.

Think about it – how can you comply with a disclaimer after having read the content of the e-mail? As a result, there are some who advocate (albeit annoying for those who rely on email) that the disclaimer appear at the top of the e-mail. This option is known as the “envelope within an envelope” approach. The confidential information is sent as an attachment and the text of the e-mail only contains the actual language of the disclaimer.

While this does not guarantee that the recipient will not open the attachment, it could provide some greater standing in litigation if disclosure does occur. Such evidence would be relevant into providing proof that the sender took reasonable measures to ensure the confidentiality of documents.

3. Stop. Think before you press send.
One of the best methods for protecting information (note: information protection doesn’t always mean encryption) is to establish and effectively communicate expectations for proper use of email (if you need some help learning how to communicate policies more effectively – pick up the phone and call, it’s what we do).

Every organization should put in place a company policy with regards to sending confidential information through e-mail. This could range from a “no forwarding” policy to restrictions on what information can and cannot be sent. Clear guidelines within an organization can provide directions for individuals to understand the proper use of e-mail and decrease disclosure of sensitive information.

In the end, some do, some don’t and you get to chose

Currently, there is little case law or statutory interpretation that discusses the legal rights of senders vis-à-vis e-mail disclaimers. With the prevalence of internet use, it is understandable that individuals would attempt to ensure some level of privacy when sending e-mails. Unfortunately, the law today does not provide protection for the misuse of confidential information sent over the internet regardless of a written disclaimer. Companies and individuals need to determine, on their own, the risk of disclosure and how to best protect their privacy.