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.
