Email disclaimers

What are email disclaimers?

Email disclaimers are statements that are either prepended or appended to e-mails. These statements are usually of a legal character but can also be used for marketing purposes. A disclaimer can also be used on a website. However, this site only covers the use of disclaimers in email communications & the related email law. 

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Why do you need disclaimers?

There are several reasons why you might decide to add disclaimers to your e-mails. The reasons can be categorized into two groups: legal and marketing reasons. 

1. Legal reasons

If you were to be so unlucky to be sued for the contents of an e-mail, it is not certain whether an email disclaimer will protect you from liability in a court of law. However, it will certainly help your case and in some situations might exempt you from liability. More importantly, it may well prevent the actual occurrence of lawsuits against your company since the mere presence of the statement might deter most persons from seeking legal compensation from your company. Therefore the use of disclaimers is always recommended. There are 6 legal threats that disclaimers can help protect against:

• Breach of confidentiality: By including a disclaimer that warns that the content of the e-mail is confidential, you can protect your company against the exposure of confidential information. If the receiver breaches this confidentiality, they could be liable.

• Accidental breach of confidentiality: If an employee were to receive a confidential mail from someone and by accident forward it to the wrong person, the employee, and therefore the company, could be liable. This can easily happen. For instance a wrongly addressed e-mail can be forwarded to a postmaster, who might not be authorized to read the mail. Furthermore, e-mail can easily be intercepted. If you include a statement at the end of your mail that the message is only intended for the addressee, and that if anyone receives the e-mail by mistake they are bound to confidentiality, this could protect you. 

• Transmission of viruses: If an employee sends or forwards an e-mail that contains a virus, your company can be sued for this. Apart from implementing a good virus checker that blocks viruses entering and leaving the company via e-mail, you can also warn in your disclaimer that the e-mail can possibly contain viruses and that the receiver is responsible for checking and deleting viruses.

• Entering into contracts: Written communication, including e-mail, can be used to form binding legal contracts if the individuals have actual or apparent authority to do so. If you do not wish certain employees to be able to form binding contracts by email, you could include a statement that any form of contract needs to be confirmed by the person's manager. 

• Negligent misstatement: By law, a person is obliged to take care when giving advice that a third party relies on. If an employee were to give professional advice in an e-mail, the company will be liable for the effect of the advice that the recipient or even third party, reasonably relies upon. A suitable disclaimer could protect your company from this kind of liability.

• Employer's liability: Although a company is ultimately responsible for the actions of its employees, including the content of any e-mails they send, a disclaimer can decrease liability; if a company can show that it has correctly instructed its employees not to send libelous, inappropriate or defamatory statements this could help in disclaiming responsibility if an employee breaches these rules. A company can demonstrate this by including an e-mail disclaimer to that effect, and by implementing an e-mail policy that clearly warns employees against misuse of e-mail. 

 There is no disclaimer that can protect against actual libelous or defamatory content. The most a disclaimer can accomplish in this respect is to reduce the responsibility of the company, since it can prove that the company has acted responsibly and done everything in its power to stop employees from committing these offenses.

2. Marketing reasons 

Apart from legal reasons, a footnote or signature can also be added to serve marketing purposes.

• Add marketing information: Disclaimers can be used to add a company address, URL and/or slogan if wished. In some countries companies are required to state the company's particulars on any written communication. Since e-mail is also written, it is probably best to include this in emails as well.

• Convey professional image: By adding disclaimers to emails your company conveys a professional, trustworthy image. Apart from deterring any possible adversaries from suing, it will convey awareness and professionalism to your customers. 

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Append or prepend disclaimers?

If you prepend the disclaimer, there is more chance that it will be read. However, it might interfere more with your e-mail communications. The choice whether to prepend or append disclaimers therefore will probably depend on how secure and confidential your e-mail communications need to be and how important e-mail is to your company. A legal company or financial institution for instance might choose to prepend disclaimers. However, a company selling books or flowers over the Internet would probably prefer to append the disclaimer. 

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Internal and/or external disclaimers?

It is best to include disclaimers on internal as well as external mails, since legal issues apply to both. Although the virus and contract issues will mainly apply to external mails, the confidentiality and employer's liability aspects will be just as important, or even more important for internal mail as they are for external mail. For instance, there have been numerous cases where employees sued their employers for e-mails with sexual, racist or other offensive content circulating the office. As for confidentiality, this might even be more of an issue for internal mail, since not only is there quite a good chance that a colleague might accidentally read a confidential e-mail, an insider will recognize the importance of the information much faster than an outsider. The samples page lists a sample internal disclaimer.

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Departmental email disclaimers 

Depending on a person's job function, you might wish to add different disclaimers. For instance a person in the sales department might need a statement saying that all quotes are only valid for 30 days. The accounts department might need a disclaimer that concentrates more on the confidential nature of the information. The technical support department might want to include a notice that they cannot be held liable for the consequences of their advice. See the samples page for sample departmental disclaimers.

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How to create specific disclaimers

It is best to make the disclaimer statement as specific as possible, since this will add to the weight of the statement. For instance, instead of saying 'the company will not accept liability', it is better to mention the actual company name: 'Company XYZ will not accept liability'. To make the notice more specific, some products allow you to use merge fields in your disclaimers, such as:

• Recipient name: If you can include the recipient name in your disclaimer, e.g. 'This e-mail and its contents are only intended for [Mr.X]', this will make it even more clear to whom the e-mail is addressed and that if any other person were to read the information they are bound to confidentiality. 

• Supervisor's name: In the case of limiting the entering into binding contracts via e-mail, you could mention the name of the supervisor who needs to confirm a contract in writing. For example: 'This employee is not authorized to conclude any binding contracts without the express written confirmation by [Mr. Y]'. 

• Date: It might also be useful if you can include a date in the disclaimer, since this might help when determining to which part of the e-mail the disclaimer applies. 

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Disadvantages of using email disclaimers

A disadvantage of using disclaimers can be that some e-mails contain long lists of disclaimers since usually disclaimers are added to every sent e-mail even if it already contains a disclaimer. For instance if you were to send an e-mail, receive a reply and reply back, there will be 2 of your disclaimers at the bottom of the mail. This can sometimes end up being quite a long list. The best thing is to try to keep the disclaimer as short as possible, and distinguish it from the rest of the text. This can be done by adding a line of *** at the top and bottom of the disclaimer or by adding it in a different format, i.e. different color, font or font size. Alternatively you can use a disclaimer program that can detect the existence of a previous disclaimer and suppress the adding of another disclaimer.