Simply sticking a disclaimer at the bottom of an email is no get-out-of-jail-free card, warns Tamzin Matthew.
Most organisations use email footers as part of their risk mitigation strategy, and I am frequently asked how effective such statements are in protecting against liability. In reality, a footer is more likely to be successful as a way of fulfilling a legal obligation to give information or improving an organisation's chance of enforcing its legal rights than disclaiming liability.
There are no legal authorities that relate specifically to email disclaimers, but the way they are likely to be interpreted can be discerned from the law in relation to disclaimers in general. Liabilities for which organisations commonly attempt to disclaim liability are defamation, virus transfer, copyright infringement and inadvertent contract formation. However, a disclaimer alone is unlikely to prevent liability.
In very simple terms, to be effective the disclaimer must have been brought to the recipient's attention and it should be clear that both parties understood the exclusion would apply in the course of dealings between them. The courts interpret disclaimers narrowly, against the person relying on them, so unless the disclaimer is found to specifically and completely cover the circumstances under which the liability arose, it will not be effective.
There are also problems with enforceability. Email disclaimers sit at the end of the message and so may not be brought to the recipient's attention prior to their reading or acting on the email. Some organisations put a notice at the top of the email directing the recipient to read the footer before reading the message or opening any attachment. This improves the sender's position.
Because email disclaimers are auto-generated, there is an argument that neither party would truthfully believe that the disclaimer applies to their specific course of dealings. If there has been no exchange of correspondence, the disclaimer will not be part of any dealings.
The generality of email disclaimers means the wording is unlikely to be specific enough to be construed in the sender's favour in a particular situation. Disclaimers cannot override the obvious intentions of the parties. It is hard to see how any sender would send an email with the intention that recipients should not rely on it, as some disclaimers would suggest. Some legal liabilities are just too fundamental to be easily disclaimed. For example, it seems extremely unlikely that an employer could avoid liability for the acts of his employees where those acts are in the course of their work.
On a more positive note, disclaimers can deter recipients from taking legal action and will provide a useful bargaining tool in any dispute negotiations. An email disclaimer may also assist the sender's case, when taken in the context of a number of other favourable circumstances. It must also be remembered that email footers have a number of uses, in relation to which their effect is certain, for example, companies must ensure that all business emails contain the company registration number, its country of registration and registered address. Failure to comply could result in a fine of up to £1,000.
There are a number of good reasons to do this. The first is to inform external users of email monitoring.
Regulations made under the Regulation of Investigatory Powers Act permit system owners to monitor emails on private networks, for limited reasons and provided that they take reasonable steps to inform all users of the monitoring. A statement in the email footer will go some way towards showing that the system owner has taken "reasonable steps".
Secondly, an email footer can help protect confidential information. Stating in a footer that the email may contain such information may prevent wrongful disclosure and gives the sender a way of proving that the recipient should have known to keep the information confidential if it is disclosed.
Finally, to notify correspondents of important issues such as Freedom of Information, many public-sector bodies use a footer to inform external users that their emails may be disclosed pursuant to a request under the Freedom of Information Act 2000.
Tamzin Matthew is a partner in law firm Blake Lapthorn Tarlo Lyons, and specialises in IT law. She can be contacted at Tamzin.Matthew@bllaw.co.uk or on 01865 254262.