You know the ones…here’s an excerpt of an email disclaimer I received recently:
I’ve seen others that insist that if you are not the intended recipient that you are to DELETE IT IMMEDIATELY under pain of torture (or some lesser punishment).
Would something like this stand up in court? If I were to disclose to the press contents of an email that I was not supposed to receive, would the sender have any legal recourse?
The author of the email has a copyright on his message. Whether that has any practical value in court, I don’t know. If I’m a reporter, and someone leaks a corporate memo to me, can the corporation prevent me from printing it in the newspaper?
According to a story I heard on NPR (I think) a few months ago, these types of disclaimers are weakened by overuse. Since they are automatically attached to every message, some that are patently not confidential, like the latest joke or what bar you’re meeting the gang at, call into question the confidentiality of any message. The advice given with the story was, if you use these disclaimers, use them only when necessary to avoid diluting their effectiveness.
We’ve had threads like this before. And since you have never done anything positive to agree to the stipulations, you aren’t bound by them.
If disclaimers were enforceable, you could put wordage at the bottom of the e-mail saying all readers owe the sender ten bucks. No one can force a contract on you without your positive agreement.
While the effect of such clauses would vary from jurisdiction to jurisdiction, the point you make, RealityChuck, is bad in principle because actions and words can affect legal rights and obligations other than by contract. Yes, you cannot create a binding contract unilaterally, but that doesn’t mean that such a disclaimer is of no effect.
Absent some specific law to the contrary in a particular jurisdiction, it is probably true to say that such a clause cannot create any positive obligation upon the unintended recipient to do something. However, one of the key effects of such a clause may be to remove any possible suggestion that an unintended recipient has been given tacit permission to do anything with the message other than what the clause requests.
The other key effect is to attempt to remove any suggestion that the sender tacitly accepts that they waived any rights they might otherwise have by accidentally misdirecting the message. This may be important in an argument about legal professional privilege.
Here are two previous threads on this issue:
It is more intended to demonstrate that the sender attempted to adhere to HIPAA or other privacy standards.
Close only counts in horseshoes, hand grenades, and nuclear weapons against soft targets. I’m not aware of any part of that law that gives you points for trying to keep things secret.
Thank you for the idea! I’ve amended my signature to contain the phrase “By replying to this email you agree to pay [me] ten pounds.” buried in the legalese.
I think this would be legally binding, and will certainly be emailing my council a lot.
In a legal proceeding, if one party is seeking discovery of communications that the other party does not want to disclose, the second party might try to argue that the communications are privileged. When claiming that a communication falls under the attorney-client privilege, for example, it is a relevant consideration whether the sides have taken reasonable steps to keep the information confidential.
Similarly, under trade secret law (in most if not all states), the party wishing to claim ownership of a trade secret must show that he or she has taken reasonable steps to keep the information in question secret.
In these cases and others, you do get “points” for trying to keep something secret but not necessarily succeeding.
Whether this E-mail notice would qualify as a part of a reasonable effort to keep a secret is a different question.