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?