Here’s an Infoworld item on Ed Foster’s Gripelog about those annoying email disclaimers. Should anyone use email disclaimers? Should everyone use email disclaimers? Are they legally effective? Are they worth it? I commented on the blog entry for Ed’s readers, but the legal issues are worth exploring on here.

Email disclaimers as a form of “Notice”
Many of my technology and other business clients are in agreements not to disclose (NDA) certain information — with their own clients on ongoing projects, with prospective clients, with employers, with potential acquirers or partners, with business consultants or investors or venture capitalists. These NDAs typically contain a provision requiring information which is exchanged to be labeled “CONFIDENTIAL” or “PRIVILEGED”. Email communications between the parties frequently contain information covered by these agreements, and using an email disclaimer can function as “Notice” under an NDA: it can help personnel for these parties to remember that communications need to be confidential and may not be shared with parties not subject to the NDA.

In a similar vein, lawyers and other professionals (accountants, doctors) are under professional and ethical duties not to disclose client and patient information to outside parties. In the case of lawyers — we are particularly aware that communications with clients are “attorney-client communications” which are subject to an attorney-client privilege in litigation. This means that in some potential future lawsuit involving the client, communications on the matter between lawyer and client are excluded from being requested and produced to the opposing side, through routine discovery rules. However, either the client or the lawyer can lose (“waive”) the attorney-client privilege by sharing communications with ANY parties who are not part of the attorney-client relationship. One communication cc’d or forwarded by email to the wrong party, which is not marked as an attorney-client material, could open up ALL attorney-client communications for the opposing side to peruse. This is particularly critical in corporate communications involving legal representation, where there may be many different individuals communicating on behalf of a corporation (which is the “client”) with the corporation’s attorney. In these situations, an email disclaimer can serve as “Notice” and a reminder to all communicators that these emails should not under any circumstances be disclosed, or attorney-client privilege will be waived. Will an email disclaimer get the sender off the hook for losing the privilege? No. Like a cat out of the bag, a lost privilege cannot be undone. The information becomes available, and, in the case of a licensed professional, its inadvertent disclosure may constitute professional malpractice. The disclaimer is not a “forcefield” — it is a means for the sender to remind him or herself, and other involved parties, of the obligation to keep the information confidential.

Does an email disclaimer used as “notice” legally protect a communication?
Not in and of itself. Using a disclaimer is one of many actions which could potentially taken by a party to an NDA, or a lawyer safeguarding confidentiality, to minimize the threat of inadvertent or wrongful disclosure. But, any court or review panel judging the sender’s success in protecting confidential information under an NDA, or information subject to attorney-client privilege, is going to look at the facts and circumstances of the parties’ conduct surrounding the handling of the communication, rather than simply some language. The email disclaimer, if properly deployed, can serve as evidence that the parties took affirmative actions to avoid disclosure and this evidence may help in case information inadvertently or deliberately is leaked to third parties, resulting in a misappropriation of trade secrets or loss of trade secret status, or the loss of an attorney-client privilege in litigation.

Even in these circumstances, not all “notice” uses of a disclaimer in email are going to be effective for averting unintended disclosure to the wrong parties. Certainly, putting an email disclaimer in a standard signature and sending it out with all email to all recipients, does not serve to identify which communications are under a disclosure restriction or under an attorney-client privilege. If the sender does not minimize usage of the disclaimer, the confidentiality claim might be defeated, under the argument that the sender is not exercising prudence and care. The placement of the notice is also critically important. Information which is exchanged under an NDA is almost always marked “CONFIDENTIAL” at the TOP, or a cover sheet is attached to hide the contents of a document — to make the recipient aware that the information is subject to an obligation not to disclose, or a professional communications privilege.

Unfortunately, the standard use of email disclaimers is to place them at the bottom of the message along with the signature block, below the entire communication. Just as an auto company can’t claim that a buyer is held to additional terms of sale which are presented to the buyer for the first time after the documents are signed by stowing them in the glove compartment when the car is delivered — an email disclaimer is not going to be effective if it’s delivered “after the fact.” The placement of a disclaimer AFTER the information intended for protection is going to make the disclaimer useless in a legal argument that the sender took all reasonably available measures to safeguard information which is transmitted under nondisclosure or professional privilege.

Email disclaimers to claim copyright
While copyright notice has not been required since 1989 and is usually not used on communications such as email, it doesn’t hurt to use copyright ‘notice’ email disclaimers to remind the recipient of an email that there are copyright claims in communications. Strictly speaking, email may not legally be forwarded (copied) to another party under US copyright law without the sender’s permission, but many recipients reason that they can legally forward anything they receive, under a theory of “implied license.” (See this Arborlaw blog post for more information on copyright, implied license, and email forwarding.) A claim of implied license to forward or “republish” or use in some other manner can be disclaimed in writing by simply stating that there is no license to forward, duplicate or publish the content. So, this is one of the best uses of email disclaimers: as an effective notice of copyright claims, denying permission or implied license to forward or publish.

Email disclaimers as a form of “contract”
I am frequently asked whether there is some type of “magic language” that people can add to an email, to the front of an unsolicited mailed item, or whatever, which will form a contract (or reject a contract) and automatically apply and be legally binding on all interactions between the parties. In the context of this article — Doesn’t my email disclaimer operate as a contract with the recipient?

Contracts are formed when there is a valid offer and acceptance between two parties to exchange performance (payment or actions). The terms of the contract must be proposed in advance and agreed upon by both parties, either formally or informally. An agreement about a contract’s basic terms or specific language between two parties, is called a “meeting of the minds.” The exchange of promises of performance is usually called “consideration” — either payment, or the promise to do or not do something. One-sided boilerplate language (such as is found in many email disclaimers and in clickwrap and EULA agreements) does not form a contract in and of itself. There must be a proposal between the parties to exchange something for something, and the basic terms of the exchange, and any specific language, must also be proposed between the parties and subject to a “meeting of the minds.” Specific protective language will have no effect unless it is presented before the fact, rather than after the exchange has taken place.

In the case of an email disclaimer, what’s the contract? Here’s an example which will make this clear: I send you an email with a disclaimer saying “You agree you owe me $100 by receiving and reading this email and all other emails from me.” If you have already received my email without agreeing in advance to pay me $100, you will not owe me $100 simply because I said so. There is no meeting of the minds.

In most cases where email disclaimers and similar boilerplate language are being deployed, the language is presented to the other party after the fact. Even in a case where the parties do intend to form a contract, the common law and the Uniform Commercial Code (UCC) are clear that terms supplied after a contract has already been formed do not automatically become part of the contract.