Are email disclaimers enforceable?

The Economist has a thought provoking article titled "Spare us the email yada-yada" with the subtitle "Automatic e-mail footers are not just annoying. They are legally useless". The article highlights some of the challenges facing email disclaimers and there are just no clear answers that I have come across. The central challenge is the following:

Many disclaimers are, in effect, seeking to impose a contractual obligation unilaterally, and thus are probably unenforceable.

When you send an email to someone and you have a disclaimer or link to terms and conditions, the recipient of the email may not be expecting your email or be familiar with your terms. That person may not be inclined to agree to your terms and conditions which you are effectively seeking to impose unilaterally. An email disclaimer is a form of contract with email recipients and contract law usually hinges on a "meeting of the minds" between the contracting parties. Unilaterally imposing terms and conditions is not a meeting of the minds and it is certainly not the result of some sort of negotiation.

A local blogger recently had a bad experience with a global fast food chain and tweeted his experience. The chain got in touch with him about the experience and unilaterally sought to prevent him from mentioning anything about his communications with the chain through, as I understand it, an email disclaimer. Why should the blogger be restrained from exercising his right to freedom of expression simply because the chain has a confidentiality requirement in its email disclaimer. This doesn't seem to be in line with the contractual principles which underpin these terms and conditions.

A counterargument which I have been thinking about is that the recipient is presented with a set of terms and conditions on the basis that her consumption of that email is subject to those terms and conditions. By reading the email and acting on it, the recipient is signifying, by her conduct, that she has read, understands and agrees to those terms and conditions. This is a similar principle that applies to website terms and conditions, parking terms and conditions and hotel checkins, to name a few parallel examples. The problem with this approach is that the recipient generally only becomes aware of these terms and conditions after having opened and read the email. References to email disclaimers are typically at the bottom of an email and where there are restrictions on confidential information disclosure, for example, the damage is probably already done by the time the recipient gets to the terms reference.

Another problem with email and a characteristic which distinguishes it from the examples I mentioned above is that emails are data messages sent from the originator to the recipient, often passing outside the originator's messaging system in the process. Unlike website terms and conditions and similar terms, originators can easily lose control of the disclaimer notice and are not guaranteed that it will be displayed prominently each time the message is displayed, or at all. While a website user can be bound by website terms and conditions just by visiting the website, the legal principle behind this starts to break down a little when it comes to email terms and conditions, at least the principle's application.

Absent clear authority on this (and I could have missed something), making use of email terms and conditions is a risk management exercise. If these terms and conditions are legally binding, despite their challenges, then companies would be irresponsible not to make sure that they not only make use of these terms and conditions but that these terms and conditions are complete and comprehensive. Can you afford to take the risk?

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Image credit: Email with Mark Zuckerberg, CEO of Facebook by Robert Scoble, licensed CC BY 2.0

A quick administrative note for email subscribers

One of my email subscribers pointed out that she has been receiving duplicate emails from web.tech.law since subscribing to the mailing list. I don't know what the cause of that is and, assuming that other subscribers have the same experience, I have switched the email newsletter mechanism to a different provider altogether.

Because current newsletter subscribers opted-in, I have simply migrated everyone across to the new newsletter database. You are, of course, welcome to unsubscribe at will and the next email you receive (quite possibly the one you are reading right now) will have an unsubscribe link.

If you are interested in ways to subscribe to web.tech.law, I have presented a number of options on the new Subscriptions page on the site.

Law firm fudges mailing list privacy and its own reputation

I received an interesting email this morning referring me to an email which a local law firm distributed to subscribers of its property-related mailing list. Ordinarily that isn't the sort of thing which would garner much interest from me - property law is somewhat outside my usual scope. What caught my eye is the way this law firm emailed this particular issue. It listed every email address in the mailing list in the "To" field and the result is something like this:

If you are wondering what the blue fuzz is, it is a partial screen shot of the distribution list, zoomed out to obscure the individual email addresses. The recipient whose response to the law firm was forwarded to me along with the original email had the following to say in his reply to the firm (this is a direct quote):

I find it extra-ordinary that your firm has revealed the private contact details of 1378 of your clients.

I am not a lawyer but I am pretty sure as a law firm that this is a MASSIVE breach of ethics and I certainly NEVER wish to be affiliated with your firm again. I am horrified my personal email address has been revealed by your firm to every person on this mailing list. There are VERY VERY VERY strict rules as to the data protection of your clients' information but it seems your firm has opted to ignore these basic rules.

If this is how you treat my private email address goodness knowshow else you are treating your clients information!!!

The massive conflicts this emailcould create is shocking and I ask your firm to kindly remove my email address with immediate effect and not to EVER contact me again!

This blunder raises a number of legal issues. The one issue raised in the quote is legal professional privilege (commonly known as attorney-client privilege) which vests in attorneys' clients. This privilege places restrictions on what information attorneys can disclose about their clients and the work they are doing. What is a concern about this email is that it potentially discloses information about the firm's clients through their email addresses. That said, names of clients may not fall under legal professional privilege although this depends on the nature of the work being done for the client and any contractual restrictions between the client and the attorney.

Disclosing email addresses and, indirectly, clients' identities may be a breach of confidentiality which is an implied term of an attorney's contract with his or her client; a breach of non-disclosure provisions where the client has required the attorney to sign a non-disclosure agreement protecting its identity from disclosure.

Another concern is the simple disclosure of the recipients' email addresses to each other. The mailing list apparently contains roughly 1 378 recipients and some of those recipients may prefer that their email addresses not be disclosed to each other. I hope the firm's privacy policy covers this sort of disclosure and can sympathise with recipients who, like the recipient I quoted, are dismayed that their personal information could so easily be disseminated.

Of course this doesn't reflect well on the firm itself which could easily lose a number of clients outraged at this blunder. The firm could also suffer reputational harm should these recipients discuss the blunder with their colleagues, friends and other parties. This disclosure could also easily undermine what must have been a fair amount of work that went into the database's compilation and any goodwill the firm garnered through its publication in the time it has been distributed.

Leaving aside questions of confidentiality (and they are potentially very serious), not taking care to protect an email database from this sort of public disclosure could have equally serious privacy and reputational consequences for an organisation. I certainly would not want to be the firm's directors when clients start calling about this.