Email Disclaimers – Are they Legally Binding?

An email disclaimer is a short body of text appended to an email and is often used by businesses to “protect” themselves from various scenarios that may put them at legal risk. For example, some companies use disclaimers to disclose the confidential nature of certain emails.

Here is an example of a disclaimer:

This email and any attached files are confidential in nature and intended solely for addressed recipient. If you have received this email in error please notify the sender.

There is a lot of talk about whether or not disclaimers are legally binding – most law sites I visited had similar views – that they are not legally binding. There are several issues with disclaimers:

• A legally binding contract requires both parties to agree. Since most companies typically append the disclaimer to the bottom of the email, the recipient doesn’t even have a chance to “disagree” with the disclaimer as they've already read the contents of the email.
• If the message is appended to the top of the message, it will decrease the effectiveness of the email as users will need to read through a possibly long-winded disclaimer before they get to their message. I have yet to see a disclaimer appended to the top of an email.
• The fact disclaimers are typically appended to all messages can reduce the seriousness of the disclaimer as it would be difficult to believe all emails sent are of a confidential nature.

In researching this topic, I was not able to find any cases where a disclaimer had helped out a company in a legal case. This doesn’t mean disclaimers are entirely useless, but they shouldn’t be relied upon as a sole means of legal protection.

Some law sites suggest that if you do have a message you need to send of a sensitive nature that you use a manual disclaimer, encrypt the message and then add the message itself as an attachment to the disclaimer. This still is probably not legally binding, but at least it gives the impression that the recipient read the disclaimer before they opened the (sensitive) attachment.

If you are considering using an email disclaimer, please discuss the topic with a lawyer before making a decision either way.

Below are a few additional resources you may find useful:

An entertaining look at the “stupidity” of email disclaimers, with plenty of examples: http://goldmark.org/jeff/stupid-disclaimers/

A legal take on email disclaimers: http://www.weblaw.co.uk/articles/faqs_on_emails_disclaimers_and_the_law/