It is safe to estimate that less than 10% of email recipients with disclaimers ever read them. Do you?
To protect the sender and bind the recipient to the email disclaimer, email disclaimers rely on contract law. Ryan Calo, at the Center for Internet and Society at Stanford Law School, says, quote:
“In most circumstances, they (email disclaimers) would not be legally binding. What the (email) disclaimers are trying to do is establish an agreement between the sender and its recipient that gives rise to a duty of nondisclosure. That’s just like any other contract. Both parties have to agree to the terms of the agreement. There’s nothing in the act of simply receiving a message that would give rise to an agreement to keep the contents secret. The net effect most of the time is just to put you on notice.”
Would you like to include legal disclaimers to help protect you and your company? While some argue that they may not be legally binding, many believe that pre-existing EULA may have already covered the disclaimer portion, while others assert it’s always better to have redundancy when it comes to claims of confidentiality, privilege, and non-liability. It is a common practice to use an Outlook “signature” feature to automatically include the disclaimer in the email footer.
There are many specific reasons why companies include Disclaimers in their paperwork, including Email-based communication. Here are several reasons – but you can probably think of a few more that pertain to your specific business.
- to communicate sensitive data and protect the confidentiality of the privileged information;
- to prevent CAN-SPAM violations;
- to protect your intellectual property and copyrights;
- to limit accidental contract formation;
- to disclaim negligent misstatements;
- to disclaim employer liability for the employee-sent statements
- to abide by regulatory compliance
- to disclaim liability in case of potential computer virus infection and advise the recipient of their own responsibility to scan, prevent, and mitigate any potential damage
What about the legality of an actual electronic signature (your legal name) on the agreement line in an electronic document?
The use of electronic records and signatures in transactions is subject to Federal law, 15 U.S.C. §§ 7001 et seq, as well as State law, N.J.S.A. 12A:12-1 et seq.
In the state of New Jersey, the law treats electronic mail and following email conversation thread exchange just as it would any other offer and acceptance.
New Jersey businesses, take a note: since 2001, according to the New Jersey Government Per Section 7 of UETA (C. 12A:12-7), “Legal effect and enforceability, a) if a law requires a record to be in writing, an electronic record satisfies the law; and. b) if a law requires a signature, an electronic signature satisfies the law.”
There are, of course, exceptions – you must consult with the lawyer to discuss what is required or accepted for your specific type of business and industry.
If you don’t have the disclaimer set up in your Outlook Email Signature yet, here is how to create one
In the File menu, click Options.
Then choose Mail, and select Signatures…
Insert or update your signature in the formatting field, and add the disclaimer just by typing the text you would like to have appeared at the end of each email. Click OK when done.
That’s all there is to it. Be sure the name of the signature you just created appears in the box titled Signature For New Messages: and Signature For Replies and Forwards: and click the OK button. You can test the signature by creating a new email message. The signature you created should automatically appear at the end of your email message.
Additional useful information may be found through these links:
- For more MS Office features, go to https://www.microsoft.com/en-us/microsoft-365/blog/2012/06/04/add-signatures-and-disclaimers-to-your-email-with-office-365/.
A few examples of a disclaimer message:
- “DISCLAIMER: This e-mail message and any attachments are intended solely for the use of the individual or entity to which it is addressed and may contain information that is proprietary, privileged, confidential, or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify “Your Name” at “Your Company Name” immediately (by replying to this message or by sending an email to Your Email or by calling Your Phone Number) and permanently delete this message and any attachments.”
- “DISCLAIMER: This message (including any attachments) may contain confidential, proprietary, privileged and/or private information. The information is intended to be for the use of the individual or entity designated above. If you are not the intended recipient of this message, please notify the sender immediately, and delete the message and any attachments. Any disclosure, reproduction, distribution or other use of this message or any attachments by an individual or entity other than the intended recipient is prohibited”.
- “COPYRIGHT NOTICE: “Your Company Slogan”© is a registered trademark of “Your Company Name”. All Rights Reserved. Email our offices for a Trademark and Copyright Use policy.””
- “Your Company Name” registered at “Your Registered Address”. This email, sent from “Your Email Address”, is confidential and may contain privileged or copyright information. If you are not the intended recipient, please delete this email, and you are notified that disclosing, copying, distributing, or taking any action in reliance on the contents of this information is strictly prohibited. This email is not a binding agreement and does not conclude an agreement without the express confirmation by the sender’s superior or a director of the Company. The Company does not consent to its employees sending non-solicited emails which contravene the law.
Best-practice Email Legal Disclaimer
The best email disclaimer is simply one that gives your organization the most protection, it should be tailored to your business, and federal and state regulations. To make sure your disclaimer is aligned with appropriate email laws we highly recommend you speak to your lawyer and have the disclaimer reviewed and approved prior to use.
Another important aspect is continuous reinforcement of your organization’s email policy.
Connecting the dots
You know it: proper policies, procedures, and IT tools go beyond just email. powersolution.com are business consultants first, and we can help you with the big picture for your business. We understand the crucial alignment between technology strategy and business strategy: this understanding that we put in practice every day since starting our New Jersey IT company in 1996 differs from many other IT setups. We know our award-winning, local IT company would be a great fit for your NJ business’ IT goals and needs.