Is the disclaimer at the foot of your email enforceable?

As far as I have been able to establish, no court has pronounced on the enforceability of email disclaimers.

Generally, they seek to impose a contractual obligation between the sender and recipient. In terms of the law of contract, unilateral contracts are generally unenforceable, even in the form of email disclaimers.

However, the doctrine of vicarious liability applies equally to emails as it does to other forms of correspondence. If the recipient reasonably believes the email was sent by someone representing the company, he or she can conclude that the content of that email represented the views of the company. If the email was defamatory of the recipient, he or she could sue the company. The exception to this is where the recipient has good reason to believe that the sender was not acting on behalf of the company, but was in fact acting on ‘a frolic of his own’.

The types of legal problems that can be caused by an email are numerous and could include claims for Defamation, Misrepresentation, Breach of Confidentiality, Sexual Harassment and Virus contamination of a recipient’s network.

Even if the recipient of your email does nothing to signify acceptance of the disclaimer, the chances of the disclaimer being effective are improved if:

·    the disclaimer appears at the top rather than the bottom of the email. In this way, the email comes to the attention of the recipient before he or she has read the contents of the email so that in the same way as a fax cover sheet disclaimer, the recipient can make an informed decision whether to continue reading the contents.

·      if the recipient has received emails from the sender before, it could be argued that s/he knew and accepted the contents of previous email disclaimers and should exercise care in continuing the exchange of emails if s/he is unwilling to accept the terms of such disclaimer.

The actual content of the disclaimer is important. It should anticipate areas of potential liability as contemplated by the common law and statute, such as the Consumer Protection Act and the soon-to-be enacted Protection of Private Information Act.

A company can and should minimise the damage that it could suffer at the hands of its employees who may send embarrassing or offensive emails. What procedure should it follow?

Every company should have a detailed Email and Internet Use Policy in place, that must be signed for in writing by every staff member. The policy should set out the sanctions for various types of breach of the policy. Let Bregmans help you design this policy.

I recommend that your emails begin with this disclaimer:

The contents of this e-mail and any attachments are confidential, may be privileged and are intended solely for the use of the named recipient(s). If you have received it in error, do not disclose, distribute, or retain it or any part of it, and please notify the sender immediately and delete the e-mail.

And end, below your signature, with:

E-mail is not necessarily secure or error free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or contain viruses. We endeavour to exclude viruses from our e-mails. However, it is the responsibility of the named recipient(s) to ensure that e-mails and all attachments are virus free. Name of your company accepts no liability or responsibility of whatsoever nature should information or data be corrupted, or fail to reach its intended destination or be accessed by anyone other than the addressee, for whatever reason or cause.