Noah Brier | July 10, 2019

Why is this interesting? - The Email Disclaimer Edition

On emails, disclaimers, and the law

Noah here. If you’ve emailed with anyone from a big company lately you’ve probably been hit with a bunch of legal language at the bottom of the note urging you to keep the contents confidential and delete if you're not the intended recipient. In case you’re not familiar (or are just a glutton for pain), here’s an example that popped up when I searched my email for “this email is” (company named redacted to protect the guilty):

The information in or attached to this email is confidential and may be legally privileged. If you are not the intended recipient of this message, any use, disclosure, copying, distribution or any action taken in reliance on it is prohibited and may be unlawful. If you have received this message in error, please notify the sender immediately by return email and delete this message and any copies from your computer and network. COMPANY REDACTED does not warrant that this email and any attachments are free from viruses and accepts no liability for any loss resulting from infected email transmissions.

Why is this interesting?

Because as far as I can tell these things have absolutely no purpose. A few years ago I looked into it out of curiosity and found nothing to support the idea that legal footers had anything to do with the law. According to the Economist, “Lawyers and experts on internet policy say no court case has ever turned on the presence or absence of such an automatic email footer in America, the most litigious of rich countries.” The article continues:

Many disclaimers are, in effect, seeking to impose a contractual obligation unilaterally, and thus are probably unenforceable. This is clear in Europe, where a directive from the European Commission tells the courts to strike out any unreasonable contractual obligation on a consumer if he has not freely negotiated it. And a footer stating that nothing in the email should be used to break the law would be of no protection to a lawyer or financial adviser sending a message that did suggest something illegal.

So why does everyone keep using them? The Economist suggests, and I would tend to agree, it’s just a meme: big companies add legal footers because they see other big companies add email footers. With that said, Brett Cenkus, an Austin-based lawyer, wrote a fairly in-depth piece that walks through the different possible purposes with some thoughts around their legal usefulness. The gist is that the vast majority exist to remind the employee, who is probably legally obligated to things like confidentiality, not to serve any real purpose with the recipient who can’t be entered into a contractual agreement without, well, their agreement. What’s more, the very act of including the disclaimer everywhere makes it less useful: “there’s a school of thought that says that auto-dropping the disclaimer on every company email dilutes the privilege, i.e., it needs to be thoughtfully used for communications that are actually privileged or courts may decline to uphold the privilege even where it applies.”

With that said, he does offer up one situation where it could have some value: to protect the recipient from interpreting any price quotes or other language as being contractually binding. “If you are in a business that regularly sends and receives email orders, those emails could constitute the formation of a contract. If your company wants to make clear that the email does not constitute a contract nor does it factor into the contract that your company will draft in the future, you may want to include a disclaimer in your emails.”

Cenkus finishes his footer article with a story of email disclaimers in the personal realm:

In Romero v. Romero, a feuding family member tried to avoid a protective order for harassment when sending an email that included the following lines: “pay-back is really a bitc-,” and “[you] still have a gigantic debt to pay to me, which will be paid no matter what,” and finally concluded with, “Your most determined, unstoppable, and visceral enemy.” The sender included at the end of that email the following email disclaimer:

Not one word herein should be construed by anyone as meaning violent or threatening intentions.

That was a family court case, by the way – how sad. The email disclaimer was not effective in that case. In its ruling, the court said that the sender’s harassing and threatening behavior would not be ignored “by simply putting a disclaimer on it.”

In the end it all reminds me a little of Ricky Bobby from Talladega Nights using “with all due respect” to say terrible things to people, finally exclaiming “It’s in the Geneva convention, look it up!” (NRB)

Chart of the Day:

Salesforce is a ~$120 billion company whose main product is customer relationship management (CRM) software. They dominate a category that just about every company that sells something or services customers must have. With that said, I’ve always been amazed by just how little market share they actually have (they have run WSJ page one ads to this effect for years). This is the bullish case for software companies like Salesforce: despite being a behemoth they’ve still got less than 20% of the market. (NRB)

Quick Links:

  • I think a lot about how libraries could never be invented today. As I wrote in WITI 4/10, “Imagine pitching the idea to your local mayor or congressperson to offer a place where you were going to house intellectual property and loan it out for free.” Turns out author and librarian Jon Michaud agrees: “It’s easy to forget just how radical an idea the public library is. It is the ultimate third place—a place that is neither work nor home, where people interact with other members of their community. It’s a place where social status is leveled, where there is no barrier to admission, and no one is stigmatized. In our divisive digital age we need such spaces more than ever.” (NRB)

  • There are certain writers that CJN and I should just set to auto-post. Friend of WITI Nick Paumgarten is one of them. We both linked to his last big New Yorker piece about a bonkers ski race in Austria. This time he takes on another strange sporting event: The Masters. (NRB) (I actually first met Nick in Switzerland when he was reporting this epic piece on Davos. His credentials were much more official than mine. - CJN)

  • I walked past a giant yellow Walkman in Ginza, Tokyo last week. But somehow I managed to miss this entire exhibition on the Walkman which was so amazing and revolutionary at its time. Thanks to BP for the link. (CJN)

Thanks for reading,

Noah (NRB) & Colin (CJN)

© WITI Industries, LLC.