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JudgmentBuy Article:

Email Disclaimers

"This email and the documents accompanying this email contain information which may be confidential or privileged and exempt from disclosure under applicable law."

Many people get emails with disclaimers and warnings that begin like this. When you see this kind of notice at the bottom of an email, what should you do? I think in most cases, you can safely ignore such disclaimers and warnings, and just use common sense.

Such warnings and disclaimers usually continue with text like this: "The information is intended to be for the use of the individual or entity named on this transmission. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this information is without authorization and is prohibited. If you have received this email in error, please notify us immediately."

This article is my opinion, and not legal advice. I am a judgment broker, not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer. Emails sent to you that have disclaimers and warnings are not contracts, because contracts are not unilateral. Both sides must agree to the terms of contracts, and usually consideration must be specified for both sides. When someone (only) sends you an email, that does not usually obligate you, except to perhaps admit you received the email.

Such email warnings and disclaimers usually mean one of two things. First, if you received the email accidentally, they want you to delete it; which is what most people would do anyway. The other meaning is, do not share this email with other people. Usually, you would not want to share it anyway.

If someone sends you an email with a warning not to copy their email, does that prevent you from later writing something that overlaps in the same topic area? Often not, if someone emails you that the sky is blue, nothing stops you from later writing or emailing someone about the color of the sky. If you forward an email that causes direct harm to someone, there might be problems, whether there was an email warning or not. You should not post or forward someone else's emails without careful consideration. Whether you do or not, should depend more on common sense, than on boilerplate legalese.

Consider this example: "This email may contain confidential or legally privileged information that is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or reliance upon the contents of this email is strictly prohibited. If you have received this email transmission in error, please delete the message from your inbox."

They emailed you, so by definition you are the intended recipient. You cannot copy it? The average person usually does not have to worry about such warnings, because if such warnings were often enforced; how could you back up your computer? (which would copy the message), or tell someone you received the email, etc. Notice the email says you cannot even rely on what the email says. Thank goodness you still have the right to delete that email.

One last example: "If you are not the intended addressee you must not use, disclose, or copy this transmission. We give no representation or warranty as to the accuracy or completeness of the contents of this email. We shall not be held liable to any person resulting from the use of any information contained in this email and shall not be liable to any person who acts or omits to do anything in reliance upon it."

Wow, that email must not have been very important, because they do not care if you pay attention to it or not. Some disclaimers borderline on being silly, and they are not binding contracts, so why do some people and companies add disclaimers to their emails?

Some disclaimers are legally useful, and some are required, however most of them have limited effect. They rarely do any harm, which is why they are used often by lawyers, and others. Email disclaimers are used to try to prevent future legal claims. A few recipients of emails might otherwise think they are getting professional advice or representation, so disclaimers are used.

Lawyers have a good reason to use disclaimers, because they must be clear about whether they represent someone or not. The Ninth circuit Court of Appeals held that a disclaimer written in plain English can avoid the creation of an attorney-client relationship

Businesses use disclaimers to try to prevent unintended contractual obligations. A company answering your question by email is usually not obligated to do anything more, and that is the reason that many businesses use email disclaimers. IRS regulations require disclaimers, and they are sometimes also required by law, especially in the healthcare and financial services industries.


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