An email disclaimer is a notice (or warning) which is added to the beginning or the end of an outgoing email. Senders have different reasons for attaching them but the main ones are to protect confidentiality, copyright or legal privilege.
Here’s an example from a law firm email:
This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the email and any attachments and notify us immediately.
In addition to lawyers, the financial services and healthcare fields commonly use email disclaimers.
But are they effective?
That’s today’s question for the 2-Minute Lawyer: Are Email Disclaimers Binding?
Though there’s little case law that addresses email disclaimers, lawyers who have studied the matter say the disclaimer is both increasingly common and fairly useless.
You cannot make a contract with another party without the other party’s consent. Therefore, without prior agreement by the recipient, confidentiality notices are not contracts and are unenforceable against the recipient.
What’s more, they usually appear at the end of the email, so the reader would not even know of the disclaimer until after s/he had read the confidential information. By then, as a practical matter, it may be impossible to stuff the confidential genie back in the bottle.
If they are unenforceable, why use them at all?
Some disclaimers are required by law. On emails with tax advice, a disclaimer is mandated by IRS Circular 230.
And there is a legitimate reason for lawyers to use email disclaimers. Lawyers have ethical and legal duties to protect client confidences. When there are legal disputes on the question of whether a legal privilege has been waived, one of the considerations is whether it was voluntarily waived. Disclaimers are evidence that sending an email to someone other than intended was not a voluntary waiver of confidentiality.
But on the whole, email disclaimers are not worth much. In most cases, the most effective thing about email disclaimers is that they make the sender feel better.
Mostly, though, disclaimers are just email yada-yada.
**These questions and answers are designed to provide helpful information that can be read quickly. They are neither a full explanation of the subject nor legal advice. To learn more, and to receive legal advice on which you can rely, contact me or another lawyer.