Are email disclaimers enforceable?

Email with Mark Zuckerberg, CEO of Facebook

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?

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

Look and Listen’s ineffective Twitter terms and conditions

Look and Listen started following me on Twitter and because it is a brand I care about, I took a look at its Twitter page on the Web and followed it back. I noticed that its background image contains text regarding its terms and conditions as follows:

Visit us on Facebook for T & C’s:

This is Look and Listen’s Twitter profile page on Twitter as viewed in a browser (the screenshot below is taken off my 24 inch screen. Viewing the Look and Listen page on my 13 inch MacBook reveals almost none of the important text at all – try this on your screen and see whether the link is even visible):

Look and Listen Twitter page

While this is certainly one way to publish terms and conditions, it is not a very effective way of making Twitter users aware of those terms and conditions for various reasons. Before I explore the reasons, it is important to understand the value of terms and conditions as they apply to social media platforms. I wrote a post about that titled “Disclaimers for social media” which may be worth reading before continuing with this post.

This method replies on users viewing the Twitter profile in a Web browser with sufficient screen resolution to accommodate the whole background image. People using older displays or lower screen resolutions may not see the text indicator for the terms on Facebook at all.

The next challenge is that users viewing Look and Listen’s Twitter profile in other applications will not see the background image at all. Below are a couple examples:

Look and Listen Twitter profile on mobile
iPhone Twitter app

Look and Listen on Seesmic Web
Profile view in Seesmic Web

Look and Listen in desktop Twitter app
Desktop Twitter app

The background image with the link to Look and Listen’s terms and conditions are not visible at all in this views (and it is safe to say that a significant number of people using Twitter don’t use the Twitter page but rather apps with these or similar views) and those users viewing the Look and Listen profile are likely to be unaware that such terms exist. This means that they can not be said to have agreed to the terms or even be somehow bound by them in the absence of their knowledge of the terms’ existence. So that approach only perhaps works with a fairly narrow sub-set of users who view the profile through a Web browser with sufficient screen resolution.

There are a couple solutions which are probably better solutions. The one solution I came across is a regular tweet containing a reference or link to terms and conditions. One company that does this is actually a law firm and my previous employer, Werksmans Attorneys. This is what their terms and conditions advisory looks like:

Werksmans tweet about terms and conditions

This approach has its benefits. It reminds people who are following the Twitter account about the existence and location of the applicable terms. Its limitation is that first time followers who follow from a profile view are not necessarily advised about the terms and conditions upfront and that could be problematic.

Another approach, which I prefer involves inserting a link into the bio section of a Twitter profile. A nice example of this is Jeremiah Owyang’s Twitter profile which includes a link to terms that apply to his Twitter stream:

@Jowyang Twitter profile

The advantage of this approach is that a prospective follower will see the Twitter bio and the link in the bio in most, if not all, Twitter apps. It is the first encounter with a Twitter user and more readily regarded as binding on new followers in much the same way that website terms and conditions are binding on website visitors. The disadvantage is that the link is not visible other than in a profile view. The best approach is probably a combination of the approach typified by the Werksmans reminders and the bio link approach.

Another reason why the background image approach isn’t satisfactory is that the link is to a document located on Facebook. While referencing terms and conditions located on another page or website altogether is acceptable, Look and Listen simply refers to the Facebook Page which doesn’t have any terms and conditions apparent on the Page at all. I only received a link to various terms and conditions when I queried this with Look and Listen on Twitter in a direct messaging conversation.

The effect of this is that no real terms and conditions are presented to Twitter followers and this means that Look and Listen lacks a legal framework optimised for its social media activities on Twitter. Instead, it will find itself subject to whatever the default legal positions may be on a case by case basis. In other words, Look and Listen has not done much to mitigate its risks.

Disclaimers for social media

Update: I wrote about two models which work better in this context here.

Chances are your company has implemented an email disclaimer of some description. It is either set out in full in your email signature or you have a link to a disclaimer on a Web page somewhere. Leaving aside how adequate those disclaimers are, most companies have them. The challenge those same companies face now is that communications with outside parties increasingly go beyond just email. You are probably communicating with your customers and suppliers on Twitter, LinkedIn and even Facebook, not to mention other platforms like blogs and instant messaging. Your email disclaimer just isn’t enough anymore.

Riveter at work at the Douglas Aircraft Corporation plant in Long Beach, Calif. (LOC)

Email disclaimers are a little like small Swiss Army knives. They are multi-purpose tools. These disclaimers typically cover intended recipients and confidentiality but they should also address potential contractual implications emails may have (you can enter into a contract by email, generally speaking); viruses and malware; negligent mis-statements and other offensive statements and comments.

One central idea behind disclaimers is to contextualise the communications and that context varies depending on the communications’ purpose. A work email is intended to achieve some business objective so personal communications are not representative of the company’s views or efforts and must be placed in an appropriate context. When it comes to personal blogs, disclaimers advise visitors that the blog’s contents don’t represent the blogger’s employer’s views. The idea there is that if the blogger posts something offensive or contrary to the employer’s views or stance, the blogger’s posts shouldn’t be attributed to the company.

The social Web necessitates that communications be similarly contextualised. A person’s tweets through a personal Twitter account should not be attributed to the user’s employer if that person is not authorised to represent the employer in that context. Similarly, a response to a query on LinkedIn about something a user is knowledgeable about may not represent an employer’s position on that topic and the user’s response should be placed in an appropriate context.

Just as with email, employees’ social platforms and services accounts should have disclaimers of a sort applied to them. I’ve been referring to these documents as social terms because they go further than disclaimers. Their purpose is to cater for many of the same issues email disclaimers are meant to cater for as well as social Web-specific issues.

Email disclaimers and social terms are important documents, even though they may be underestimated. They are often the only terms that attach to communications which could have profound implications for a business. They should be carefully considered, drafted and implemented bearing in mind the communications’ method’s peculiarities (consider Twitter profiles and their inherent space limitations) and purposes. They are an important part of a communications risk management strategy.