Stupid email disclaimers: don’t use them!

Over on the Link mailing list, there’s been a brief discussion on those legal disclaimers people put into email signatures. Brief summary: they’re stupid.

These disclaimers have never been tested in a courtroom, and in some circumstances they could even reduce your legal protection. However, I reckon the key issue for a business is “branding”.

Do you really want your communication with clients, suppliers and associates to look like your relationship will be defined by lawyers? That you routinely send “confidential” email to the wrong people and have to ask for it to be deleted? That you or your staff won’t actually stand behind what you say in an email because it’s not “confirmed in writing”? That your reaction when things go wrong is to sue someone?

Please, empower your staff to speak with authority. Get your act together so you don’t make lame mistakes to begin with. And have the confidence and honesty to stand behind what you say, wherever and however you say it.

14 Replies to “Stupid email disclaimers: don’t use them!”

  1. From the ‘stupid disclaimers’ site:
    “Notice: Unless you are named “Arnold P. Fasnock”, you may read only the “odd numbered words” (every other word beginning with the first) of the message above. If you have violated that, then you hereby owe the sender 10 GBP for each even numbered word you have read.”

    I am so putting this on my email sig.

  2. Right on brother, preach it!

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  3. I could tell you stories… at work, these disclaimers are a way of life (as I imagine they are, although I’m not there). The other hilarious thing (together with the disclaimer) was another disclaimer saying something to the effect of “the above information may not be accurate, we are not responsible for the accuracy within this letter”. The letters? Your average telco responses to other service providers. And then if the service provider returned with a complaint or pointed out a specific error, it would be the second round: denial letter, with the same disclaimer. Ya gotta love Telstra; bless their little cotton socks.

  4. One of the first things they taught us in a introductory Business Law course I did at uni is that disclaimers do not reduce anybody’s duty of care.

    They’re more of a deterrent than anything else. Most people with little to no knowledge in this area would be scared off by a wanky disclaimer.

  5. @Snarky Platypus: Precisely.
    Otherwise we’d be able to disclaim murder for the fact we’d somehow managed to hoodwink the victim into thinking it was just and necessary. An extreme example, but valid.

  6. I might starting responding to emails with a disclaimer saying they don’t count as “real” with something to the effect that I won’t act upon anything until responsibility is taken.

  7. @platypus, you’re absolutely right that email disclaimers do not reduce anybody’s duty of care, which is based upon things wholly outside of self-serving communications.

    There are legitimate reasons for email disclaimers, although easily 95% of the disclaimers that people use do not fall within the legitimate reasons. They can be used to signal that a claim of privilege is not available, as in:

    “I am not your freakin’ lawyer so don’t even think that this auto-reply to your website inquiry constitutes legal advice.”

    They can also be used in cases where a contract requires parties to exchange confidential communications, where the communications have to be marked ‘confidential’ in order for a claim of trade secrecy or proprietary rights to apply. (In other words, if you send us your stuff and you don’t mark it properly, we can apply for a patent on it.)

    I have a blog post on this. My Fortune 500 clients always ask me about these things; they’re always using them.

    I’m thinking about opening an annual award for the longest and most ridiculous email disclaimers.

    Carol Shepherd, Attorney
    Arborlaw PLC

  8. @Carol Shepherd: Thanks for that comment. (I’ve edited it slightly to make the link neater.) It’s always good to know that one’s non-lawyerly gut feeling is backed up by people with a clue. Plus it’s also good to see an example of how to use blog comments well to promote your business! 😉

  9. @Sean Carmody: Heh. Don’t forget: “This message will self-destruct in ten seconds.”

    @Carol Shepherd: Thanks for confirming something I’ve long suspected. I’ve always meant to email a lawyer to ask, but it turns out that most have mail servers that include a disclaimer. (Though, gratefully, usually along the lines of “This message was sent insecurely and does not constitute legal advice; for advice, please use our secure email service.” Which makes me wonder, what IS “secure email”? Non-net-connected webmail? PGP-signed? Something else?)

  10. My response to this stupid fad is to publish an email policy on my company web site the specifically rejects agreement to any terms and conditions received in email disclaimers. My mail server adds a link to the email policy at the end of every email I send.

    You might think this sounds a lot like having an email disclaimer, but there are important differences. Our policy covers email we receive, not what we send, and we only send a tiny hyperlink to the policy instead of a massive wedge of text. Have a read and see what you think…

    –Tim Long

  11. @Tim Long: Gosh, Tim, the bit where you reserve the right to disclose, forward or publish any emails received by the domains is a bit fierce, I think. I know that the privacy and workplace surveillance legislation here in NSW would have a few words to say about that. But I presume that’s not your point.

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