Confidentiality Warnings And Other Disclaimers in E-Mails

Introduction

The value of confidentiality warnings and other disclaimers in e-mails is somewhat limited, since courts usually attach more weight to the content of the e-mail and the circumstances in which it was sent rather than to the warning. Notwithstanding this, warnings and disclaimers may be helpful if certain issues have to be considered by the courts especially since it cost almost nothing to include such notices.

The Law Society of Singapore has in its Guidance Notes on Ethics And Information Technology dated 22 September 2001 to its members recommended that confidentiality warnings be included in E-mails sent by the law firm. The proposed warning states:-

“Information in this message is confidential and may be legally privileged. It is intended solely for the person to whom it is addressed. If you are not the intended recipient, please notify the sender, and please delete the message and any other record of it from your system immediately.”

Confidentiality

Under Singapore law, a recipient of any communication is obliged not to disclose its content or to use it for any purpose other than the purpose for which it was communicated, if and only if the communication was expressly or impliedly confidential. Whether any communication is implied to be confidential depends on whether a reasonable person in the position of the recipient would regard it as confidential. There have been many differing decisions on when information provided voluntarily is or is not confidential.

Therefore, an express statement that a communication is confidential could well make a difference. It should be prominent and clear. Some writers even suggest that the confidentiality warning should appear at the top of the e-mail rather than at the bottom. However, even in the absence of such prominence, the warning may be effective in relation to a particular message, particularly if the recipient has received messages from the same sender with the same statement previously.

Legal Privilege

In legal proceedings there is a general obligation to disclose all relevant documents to the other party. This includes documents or information stored electronically and could include communications that have been erased but can be restored.

Confidential communications passing between a company and its external lawyers for the purpose of giving or obtaining legal advice or in the preparation for legal proceedings are privileged from this obligation of disclosure.

A confidentiality warning that includes a notice that the communication is privileged helps to make clear that such communication is confidential and privileged. Such a notice also helps the person who has the duty of sorting out documents decide whether they should be disclosed or if privilege is claimed. However, the mere fact that there is such a warning claiming privilege will not confer privilege on a communication that is in fact not made in preparation of legal proceedings or to obtain legal advice. In addition, generally including a claim of privilege in all communication will devalued its effect if it were used on communications not entitled to the privilege.

An example of such a notice is:-

“This communication is made for the purpose of obtaining legal advice or preparing for legal proceedings and legal privilege will be claimed accordingly.”

Viruses

There are potential 2 problems concerning computer viruses and e-mails: (a) that computer viruses can be transmitted by e-mails, especially in attached files; and (b) that computer viruses can cause e-mails to be transmitted to un-intended recipients.

Suitably worded confidentiality warnings (like that proposed by the Law Society) can be used to reduce the impact of transmissions of e-mails to un-intended recipients.

Computer viruses can also be transmitted by e-mail, especially in attached files. Attempts can be made to place the risk and responsibility for checking for computer viruses on the recipient. How effective it would be to avoid or limit liability will depend on the circumstances, but it is worth trying.

An example of such a disclaimer might be:

“WARNING: Computer viruses can be transmitted by e-mail. The recipient should check this e-mail and any attachments for the presence of viruses. We accept no liability for any damage caused by any virus transmitted by this e-mail. This e-mail and any attachments should not be copied or forwarded without first checking them for viruses. In the event of any unauthorized copying or forwarding, recipient will be required to indemnify us against any claim for loss or damage caused by any viruses or otherwise.”

Libel, Copyright Infringement and Other Wrongful Acts

A company is liable for the wrongful acts of its employees that are carried out in the course of their employment. The informal (thus encouraging ‘of the cuff’ remarks) but recorded nature of e-mail has made liability for defamation a real risk. The ease with which software, data, text, music and graphics can be copied on computers and the increasing vigilance of copyright owners have also made this another area of significant risk.

Adding a disclaimer will probably not make any difference if an e-mail is sent in the course of employment, and is unnecessary if it is not. Nevertheless, a disclaimer might possibly affect whether wrongful acts are characterised as being committed by employees in the course of their employment or in their personal capacity. It should also concentrate the minds of the employees on the things that they can or cannot do.

An example of such a disclaimer might be:

“Employees are expressly required not to make any defamatory statements and not to infringe or authorise any infringement of copyright or any other legal right in the course of their employment. Any such communication is contrary to company policy and is outside the scope of the employment of the individual concerned. The company will not accept any liability in respect of such a communication, and the employee responsible will be personally liable for any damages or other liability arising.”

Contractual Commitments

A binding legal contract can be formed by an exchange of communication passing between individuals who have actual or apparent authority to bind their employers. This includes e-mail and because of the informal nature of e-mail, there is a risk that this may bypass both internal procedures and any standard terms protecting the employer.

An attempt may be made to limit the apparent authority of individuals to bind their employers.

An example of such a disclaimer might be:

“No employee or agent is authorised to conclude any binding agreement on behalf of [the company] with another party by e-mail without express written confirmation by [a director of the company].”

Conclusion

The mere presence of a confidentiality warning or disclaimer can be a valuable deterrent against those who seek to take legal action against a company. A strong argument for the use of such notices is that prevention is better than cure, especially in cases that can potentially arise out of email misuse. This is especially so since it is so easy and does not cost anything to add such notices. Furthermore, disclaimers can be a good marketing tool, conveying an image of professionalism to clients and customers.

Nevertheless, although an email disclaimer can aid your case in court or in pre-action negotiation, it does not guarantee protection in all cases since the courts usually will want to consider the substantive content of the e-mail and the context in which the communication was made. Some have argued that disclaimers can actually pose a threat in themselves by lulling people into a false sense of security.

Essentially, a pragmatic approach should be taken. It is true that certain risks can be minimised by using short and well-positioned warnings and disclaimers but they should be seen as just one element of an organisation’s risk management strategy. More practical tools should be deployed for optimal legal protection such as imposing email usage policies on all staff which are vigorously enforced, email filtering, and anti-virus software.