We see more and more disclaimers appearing in daily e-mail traffic. They are often very bulky blocks of text with very far-reaching statements. Ranging from a company wishing to disclaim part of its liability to a whole series of steps that an incorrect recipient of an e-mail must undertake.
The question arises, of course, whether these e-mail disclaimers are really so binding, or whether they are merely a kind of dissuader. And also: should you participate?
But what exactly is an e-mail disclaimer?
An e-mail disclaimer is a piece of text with which the sender tries to enforce certain agreements. It is usually found at the end of an e-mail, after the signature.
The sender is trying to cover himself in case the e-mail contains wrong information. Or through these disclaimers they also try to ensure that the information is only used by the recipient.
An example of such a disclaimer reads as follows:
“The content of this e-mail and attached files is strictly confidential and intended for the addressee only. If you are not the intended recipient or if you have received this e-mail in error, please notify the sender immediately and destroy this e-mail and attached files. Any copying, distribution or other use of this e-mail and attached files is strictly prohibited. The author of this e-mail strives to provide information and advice in a careful manner, taking into account the available information. The information given or advice rendered may therefore only be binding on X if this is clear from the message and within the information made available to us. The recipient should check the authenticity and integrity of this e-mail and the attached files. They may contain viruses and it is up to the recipient to check the message for any viruses. Neither the sender nor X accepts any liability for any damage arising from the receipt or use of this e-mail as a result of errors or delays in transmission by Internet.”
The above is not a joke ….
Why an e-mail disclaimer?
There are several possible reasons for using an e-mail disclaimer.
Firstly, one tries to emphasise and assure the confidential character. It is indeed true that confidential information is exchanged regularly via e-mail. So it certainly can’t do any harm to draw attention to that.
However, when you do this “by default”, your message is lost. Why would an e-mail in which you confirm to send a quotation by the end of the week be confidential after all? That way, future e-mails that are really considered confidential will be prejudiced.
Secondly, people often try to avoid liability. For example, for the damage that follows from potential errors in the e-mail concerned. In legal jargon: one tries to escape liability.
Often the sender specifies that the e-mail cannot confer any rights. Or that it is up to the recipient to check the e-mail for possible viruses.
Problems with addressing
Another reason for using an e-mail disclaimer is to deal with a possible wrong addressing.
A final and increasingly actual reason is to inform the recipient of a possible data collection. Especially now that GDPR is more and more a hot topic, some users of an e-mail disclaimer inform the recipient that their e-mail traffic may be stored.
Does such a disclaimer actually have any legal value?
No agreement, no consequences?
Without a history, the e-mail is purely one-way traffic.
Whether it is about confidentiality, or about a limitation of liability, or about the obligation to destroy something when you were not the recipient: the recipient has no say in this.
So there is no agreement, and you cannot simply enforce this from an arbitrary recipient. Imagine, after all, if you were to write in the e-mail disclaimer “Pay me EUR 1,000 within 15 days” ….
However, it is a unilateral commitment
The use of the e-mail disclaimer could, however, have a consequence, albeit an unwanted one.
After all, what you write can be attributed to you. So if you write that your e-mail has been drafted with the greatest care, then you are setting the bar high and you had better make sure that this is indeed the case!
And if you communicate information about the processing of personal data, then it is also advisable that you say what you do, and that you do what you say!
So does the e-mail disclaimer have no use at all?
E-mail disclaimers can be useful and contribute to transparency between the receiver and the sender. As a sender, you can let it be known that you consider the sent e-mail or attachments to be confidential. This can already be a good start to make the recipient think twice before distributing the information. However, if you want to be able to enforce this, it is strongly recommended to conclude a confidentiality agreement in advance!
However, there are mainly disadvantages associated with the use of an e-mail disclaimer.
Trop is too much
This often very wordy text can have a deterrent effect on the addressee.
In the case of new customers or partners, the immediate desire to remove liability and impose certain obligations can be discouraging. Also, the often erroneous legal claims in such an e-mail disclaimer are not attractive to someone who already has a legal background.
Better be safe than sorry
Another disadvantage lies in the claim that the aim is to provide information and advice as carefully as possible (and implicitly tries to apologise if things go wrong).
This gives a certain weight to the e-mail that, in case of a dispute, may be to the disadvantage of the sender. As a sender, you will be less likely to find an excuse for making a few sloppy mistakes. After all, you have claimed to carry out everything in a careful manner.
Although the use of an e-mail disclaimer does not seem completely useless, it is rather superfluous. It does not immediately grant extra rights since it is always a unilateral statement. Its only use therefore is as a scare tactic. If you also take into account that there are also some disadvantages, then you come to the conclusion that it is best to avoid using these e-mail disclaimers.
Would you like to know how you can ensure confidentiality, or check whether you are sufficiently transparent about your data processing? Do not hesitate to contact us at email@example.com.
Written by Romeo Van Overbeke, Trainee theJurists, and Kris Seyen, Partner theJurists