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Net Law Roundup #36

by Jeremy Malcolm, Internet lawyer

Most business email nowadays seems to come with a disclaimer at the bottom. Quite often the disclaimer is longer than the email itself. Anyone who wasn't a lawyer might wonder whether all of that mumbo jumbo was really necessary. And in fact, they would be right.

The most often misused statement in an email disclaimer is to say that the message is "legally privileged". That is hardly ever true. Legally privileged communications are those between people in certain occupations or positions that cannot be used in court. For example, these include communications between a lawyer and client, priest and penitant, and doctor and patient. Needless to say, this doesn't apply to most email messages.

Disclaimers also often say that the message is confidential and/or subject to copyright protection, and that penalties can apply for misusing it. But often the message is a simple, "Let's do lunch" or something similar. Is that kind of message really protected by confidentiality or copyright laws? Frankly, no, no matter what the disclaimer attached to it may say.

Finally, disclaimers often state that the content of the email does not represent the official policy of the sender's employer. The only problem with this is that sometimes it does. In that case, what is the reader supposed to believe, the body of the email message or the disclaimer that follows it? A court of law would pay more attention to the body of the email.

The bottom line is that email disclaimers, when employed indiscriminately, are of limited use. By including a disclaimer in every email you send whether it is confidential or not, you are "crying wolf" so that a recipient could be justified in ignoring the disclaimer on an email that really was confidential. If an email you are sending is really to be kept confidential by the recipient, you are better off saying so in the body of the message.

Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances