I often get emails with something like the following appended to the bottom of the email:
CONFIDENTIALITY NOTICE: This communication and any accompanying documents are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, distributing, or the taking of any action in reliance upon this communication is strictly prohibited. Moreover, any such inadvertent disclosure shall not compromise or waive the attorney client privileges as to this communication or otherwise.
Is that enforceable as a legal matter? If I hand that email with that warning to (say) a newspaper am I putting myself in increased legal jeopardy?
NOTE: This is purely out of interest. I am not asking legal advice and I am not trying to share some information with a confidentiality notice with anyone right now.
They have the same legal force as saying “By reading this email, you agree to pay me $1000.” A contract requires an agreement by both sides to be valid, not just one. Merely reading the message has no legal effect.
The point is to make people think twice about revealing the information. But there is no way to enforce it solely by the disclaimer and no other document.
Interesting little factoid. I say “factoid” because it may or may not be true in any given instance: A lot of people have their software set up to attach a footer like this to all outgoing email, meaning it sometimes gets attached to emails which are in no sense confidential. It’s just eye chowder, a Look At Me I Am A Real Lawyer What Is Better Than You decoration.
Another little factoid, but your intent has no bearing on my duty.
And this is where it verges into outright lying: I have no duty to that lawyer’s client. I am not in any position of trust relative to their client, someone I likely have never even heard of, nor have I contracted with them to keep any of their secrets under a non-disclosure agreement, nor are there any statutory reasons which would create a duty for me to not disclose any of their information I obtain through legal means. Legal means such as it being sent to me accidentally by someone who does have such duty and also has lousy email security practices.
No, attorney-client privilege is not waived, as we could see if I act on this knowledge and the client comes after the attorney for not protecting that privilege.
So why are the legal notices on products you buy enforceable?
Is it the “Opening this package indicates agreement” bit? If so if I put “Opening this email indicates agreement to the contents” in the subject line make those things enforceable?
Many of them are not, but at least you had to take some positive action that might be construed as agreeing to terms. Presumably if you read the license and decide you don’t agree, you could return it.
But, by the time you read the contents, you’ve already opened the email. I’m pretty sure that agreeing to an arbitrary unseen set of conditions isn’t something a person can do.
I guess if you wanted, rather than emailing text, you could email a link to a program that required someone to click through an agreement before reading the content, which would make the situations more analogous.
Good luck getting people to read your emails, though.
I haven’t seen any successful examples of lawsuits filed over the recipient of an e-mail making it public (excluding revelation of trade secrets and such).
But I have heard that emails are automatically copyright by the sender. Thus I cannot forward one to anyone else without permission (although I do it all the time). But nothing I am aware of prevents me from showing it to anyone I want, no matter what is says inside. There may well be an exception when you send an email to your lawyer, but that is a different matter.
True, but this doesn’t prevent what the notice intends to prevent. Copyright only protects specific expressions of an idea, whereas the notice wants to protect the ideas themselves. If you paraphrase the ideas, copyright doesn’t apply.
I don’t see the actual intention as imposing behaviors on the recipients. Rather, it’s a CYA action by the sender to demonstrate that s/he attempted to constrain the audience for the email in order to protect confidentiality.
I suspect it is laziness on the part of the company and the sender, who slap the notice on emails that are not the slightest bit confidential. I get these all the time where the contents are conference business, not company business.
A somewhat similar case is when a person presents PowerPoint slides in an open forum with the company confidential footer still there. No one in the audience agreed to this, and the disclosure was not accidental where the recipient might have some obligation to refrain from reading it.
Disclaimers aren’t magical. If you do something, you did it, and claiming you tried to not do it using a disclaimer doesn’t mean you didn’t, in point of fact, do it.
This comes up with copyright law: Saying “All properties belong to their owners” or similar isn’t relevant. To anything. Ever. If you are found to have gone too far over the deliberately fuzzy line which delineates Perfectly Normal And In No Way Culpable Fair Use and The Unnatural And Despicable Act Of Copyright Infringement, a disclaimer isn’t going to help. An attempted disclaimer isn’t going to help. Saying you credited each and every person whose copyright the court just found you to have infringed isn’t going to help, because copyright isn’t concerned with plagiarism.
Saying “No Copyright Intended” is just moronic.
More to the point: The law doesn’t work based on magic words. There is no incantation you can mutter to get you out of it. There is no form of words to make a culpable act harmless, to you or anyone else. If you begin to think legalese is magic, it’s just a short skip and two jumps from there to being THE LIVING SOIL and THE NATURAL MAN who REJECTS YOUR ADMIRALTY COURT and DOES NOT UNDERSTAND THE LAW and is going to get tazed at a routine traffic stop for being a Sovereign Citizen nutball driving around with signs that say “NOT A COMMERCIAL VEHICLE” instead of license plates.
IANAL, but I’m pretty sure it only means you can’t re-package the text, analysis, or ideas it contains as your own and then sell it to someone. Copyright is concerned with the remunerative value of the work. If you plagiarize it in an academic paper, purely for class credit, then you owe nothing to the Author. You may, however, be in deep doo-doo under your school’s Honor Code.
Most Non-Disclosure Agreements (NDAs) I have worked under have stated that confidential material/communications must be identified as such. This is obviously something that most of us, on a daily basis, completely ignore (even those of us who read it before we signed it in the first place.) It’s always been my understanding that these boilerplate e-mail enders are just a hopeful plastering on the part of corporate lawyers so that when some corporate skull-duggery occurs, they’ll be able to find one they can point to and say “See here, we said that was ours, and a secret, and that the only fair use of it was ‘X’ therefore you are in breach of the NDA.”
I’d wonder if a defense would be that everything is plastered with that message, whether or not it is kept confidential or is confidential, so the policy of the company has made the message worthless.
More importantly, most e-mails are transmitted in clear-text, through multiple servers. Even a LAN mail server might be a weak point if there is any access to any other network at any point within its horizon. If you receive an e-mail that has been encrypted for transit, and the confidentiality notice appears at the top, and you actually care, then you honor it. On the other hand if the e-mail speaks of unethical actions, by all means, forward it to the Tribune and sod the notice.
I think the point is meant to be that lawyer who has shared confidential information through the email has broken the client’s confidentiality, even if his email has boilerplate telling the recipient that this is really, really, bigly secret, and the recipient is not tell anyone else in fifth period, especially not Felicia.
On several occasions I’ve recieved emails like this where I was not the intended recipient. I’ve always forwarded the email to a bunch of friends, as well as the original sender.
