Take a moment and check just below the signature lines of the last few emails that you’ve received from companies. Chances are, almost all of them contain a few sentences of legal jargon below the signature block.
You’ve probably never read one of these closely, so to jog your memory, they might look something like:
“The information transmitted is intended only for the person or entity to which it is addressed and may contain proprietary, business-confidential and/or privileged material.
If you are not the intended recipient of this message you are hereby notified that any use, review, retransmission, dissemination, distribution, reproduction, or any action taken in reliance upon this message is prohibited. If you received this in error, please contact the sender and delete the material from any computer.”
This often inscrutable mass of text is called an email disclaimer, and they range from being as short as a single sentence, to pushing nearly 1,000 words.
If you’re growing a new business, it’s important to understand what companies who use email disclaimers are trying to achieve, and whether it’s legally effective. Once you’re armed with that information, you can make a more educated decision about whether to include an email disclaimer in your new company’s emails.
Why do companies include disclaimers in their emails?
- To disclaim the formation of a contract
- To communicate the confidential nature of the email
- To assert or protect a copyright
- To disclaim liability for viruses or other content that may exist in the email
- To disclaim a negligent statement in the email
- To disclaim the employer’s liability for the views of the sender
- To meet regional legal or regulatory requirements
Now that we’ve briefly looked at the major legal reasons that companies include email signature disclaimers, we’ll look at each reason more closely and consider whether an email disclaimer created for this purpose is legally effective, and to what degree.
To disclaim the formation of a contract
Imagine that it’s Monday morning, and you’re trying to quickly answer the dozens of work emails you received over the weekend. One is from an existing customer who is very excited about her own new candle making business.
In her very lengthy email to you, she has a bunch you pictures of her new candles and asks you somewhere in that email if you’d consider providing your services as a barter exchange for her candles. You, just skimming the email and trying to be polite, say something like “looks great” and move on to the more serious emails awaiting you in your inbox.
The next day, however, the customer shows up with a box full of candles and wants your service provided for free. She claims you agreed to a barter contract with your email exchanges—but did you?
The legal effect:
The surprising answer is perhaps yes.
When most non-lawyers think about forming a contract, they imagine sitting down at a conference table and signing with ink on physical paper. But under U.S. law, specifically the Federal Electronic Signatures in Global and National Commerce Act and the UETA, an electronic signature is just as valid as your physical signature. Moreover, under these laws, the sender’s printed name at the end of an email, including in the email’s signature block or in the “from” line, can be a sufficient email signature to bind the sender to a contract formed by that email exchange.
Perhaps even scarier, email exchanges between you and vendors can be legally interpreted to modify existing contracts. For example, in a seminal New York case, Stevens v Publicis S.A., a court found that a relatively informal email exchange between an executive at the company and the parent company’s chairman was found to have modified the executive’s employment agreement.
Thankfully, a simple disclaimer in your email signature block is largely sufficient in eliminating this concern. That’s because, for a contract to be legally enforceable, there must be a “meeting of the minds.” That’s a technical legal phrase, but essentially, it means that the parties must have both intended to form a contract as indicated by their language. A simple disclaimer on all of your emails is sufficient to make it clear that you don’t intend to enter into a contract, and therefore no contract can exist.
Thankfully, this sort of disclaimer can be short and sweet. Here are two examples:
“For Discussion Purposes Only And Cannot Be Used To Create A Binding Contract.”
“This Email Is Not An Acceptable Offer And Does Not Evidence Any Intention By The Sender To Enter Into A Contract.”
To communicate the confidential nature of the email
Imagine you’re discussing pricing with a potential new customer. Since you really want their business, you’ve agreed to give them a whopping 30 percent discount off the retail price. Then, imagine that the prospective customer turns around and publishes that email thread, which in turn causes all of your other customers to get mad and call asking for the same 30 percent discount.
But wait a sec—you had a confidentiality disclaimer in the email you sent! Doesn’t that count for anything?
The legal effect:
Unfortunately, you probably can’t point to your disclaimer to prevent the prospective customer from publishing the discount you offered them.
Attempting to use signature block disclaimers to communicate the confidentiality of an email and create a legal obligation on the recipient to protect that information is the most common type of email signature disclaimer.
However, the same “meeting of the minds” principle that made disclaiming a contract formation somewhat effective largely defeats a confidentiality clause’s legal effectiveness. That’s because unless the recipient agrees to a contract that stipulates that the information needs to be kept confidential, they haven’t entered into a contract, and therefore they aren’t obligated to respect your wishes for confidentiality.
Despite its largely inconsequential legal effect, many companies continue to use them. That’s either because they don’t know the clauses aren’t effective, or because they hope to scare or shame the email recipients into complying (which is probably somewhat effective).
A common example goes something like:
“The information transmitted is intended only for the person or entity to which it is addressed and may contain proprietary, business-confidential, and/or privileged material.
If you are not the intended recipient of this message you are hereby notified that any use, review, retransmission, dissemination, distribution, reproduction or any action taken in reliance upon this message is prohibited. If you received this in error, please contact the sender and delete the material from any computer.”
As an aside, to the extent that you truly want to keep your communications with an email recipient confidential, have them sign (including electronic signature) a contract which explicitly states that communications between your company and them are to be kept confidential. Then you’re good to go.
To assert or protect a copyright
Let’s imagine that you’re signing a contract with a new customer, who then immediately starts blasting copies of your company’s logo mashed up next to theirs to announce the contract. That’s fine as long as you’re comfortable with that publicity, but what if you also work with a number of their competitors, and don’t want to be perceived as playing favorites?
Does including a line like “All Rights Reserved” in your email signature protect your logo and other copyrights from unauthorized publication? Or, more aggressively, can you copyright your entire email contents by stating “All Rights Reserved” in your email disclaimer?
The legal effect:
The short answer to both questions is no, but the long answer is a little more complicated. Under U.S. copyright law, if you have a valid copyright, you aren’t required to write “All Rights Reserved” or “All Intellectual Rights Reserved” to be able to enforce your copyright. In addition, simply writing these phrases does not give you a copyright or any extra copyright protections.
Rather, in order to be able to legally protect your copyright in court, you need to actually formally register your copyright (thankfully you can do it yourself for around $40). And once you do, you have the right to specify how your company’s copyrighted material can be used by others. You’re almost certainly not going to do that with random emails, but for important phrases, documents, or logos, you might consider registering and forcing others to comply with your copyright and trademark use policy.
To be effective, notice of your copyright and trademark use policy doesn’t need to be listed in your email signature, and putting it there gives it no extra legal “oomph”.
So the only reason you might consider adding it is as a convenience to email recipients, and to minimize the number of times you’ll need to request others to take down whatever potentially infringing art or copy they’ve created, and instead point them to your copyright and trademark use policy.
So, if you decide you want to do this, adding something like:
“Pedlar Dental, Katy’s Cosmetic Dentist”© is a registered trademark of Pedlar Dental LLC. All Rights Reserved. Email our offices for a Trademark and Copyright Use policy.”
Disclaim liability for negligent acts
Imagine that a nasty email virus infects and ultimately destroys the computer system of one of your vendors, and that their tech team says that the virus got into their system from an email that one of your employees sent to them, not knowing the attachment was infected.
Good thing you put that disclaimer about computer viruses in your email signature—right?
The legal effect:
Sadly, that email disclaimer probably has no effect, nor do other disclaimers that attempt to limit a company’s liability for a host of other negligent acts. These commonly include inadvertently sending viruses or other harmful content in their emails, having a misstatement in the email, or limiting the employer’s liability for an employee’s potentially negligent statements.
The reason these disclaimers are largely useless is that court cases in situations like this are about whether the company was “negligent.” The existence (or non-existence) of disclaimers is largely irrelevant to that analysis. Rather, the relevant question for a jury to answer has nothing to do with notice, and everything to do with whether your company took reasonable precautions to prevent the negligent act from occurring.
For example, did you have anti-virus software in place, or did you have employee training and policies that made it clear that they couldn’t write libelous things on the company’s Facebook account, and so on?
Because disclaimers which attempt to limit the company’s liability for negligent acts are largely ineffective, there’s no significant legal reason why you’d want to include these clauses.
There’s some argument to be made that by including these phrases you can put the recipient on notice of a risk, or help shape the perception of your company as responsible in a future lawsuit by getting the disclaimer admitted as evidence, but these are pretty insignificant reasons to further clutter an email disclaimer.
That said, if you wanted to include one, it might look something like:
- Computer viruses: “WARNING: Although the company has taken reasonable precautions to ensure no viruses are present in this email, the company cannot accept responsibility for any loss or damage arising from the use of this email or attachments.”
- A negligent statement in the email: “Our company accepts no liability for the content of this email, or for the consequences of any actions taken on the basis of the information provided, unless that information is subsequently confirmed in writing. If you are not the intended recipient, you are notified that disclosing, copying, distributing, or taking any action in reliance on the contents of this information is strictly prohibited.”
- The employer’s liability for the views of the sender: “Views and opinions presented in the content of this email are solely those of the email author. They don’t necessarily represent those of the practice. Our employees are explicitly required not to infringe or authorize any infringement of copyright or any other legal right by email communication, as well not to make defamatory statements. Our company policy is clear, and you can access it here. It states that any such communication is contrary to our policy and outside the scope of the organizational role of the individual concerned. Considering all this, please be informed that the company will not accept any liability in respect to such communication. If there is any damage or other liability arising, the employee is the one who will be personally liable.”
You’ve worked hard on your first company email newsletter, and it’s chock full of great and useful information. Definitely not spam! So you decide to fire it off to 10,000 email recipients consisting of former and current clients.
Two hours later an angry customer calls complaining that “spammers like you are clogging up my inbox!” and threatening to “report you to the authorities!” Thankfully, you have a full physical address and a means of unsubscribing from the list generating the commercial email below your signature line, so you’re good, right?
The legal effect:
In this case, you’re probably okay. As long as the customer gave you permission to email them in the first place, if you’re not sending abusive or deceptive commercial emails, and you list a full legitimate physical address (or P.O. box) and a reliable means of unsubscribing to the email list, then you’re largely in the clear.
And if your email is “transactional” in nature, generally meaning it’s directed to that specific recipient and it isn’t a newsletter or sales message blast, then you don’t need anything in your email signature in order to comply with CAN-SPAM. However, in order to be extra secure, a lot of companies go ahead and include their contact information, with the only change that they clarify that the email was generated individually for that intended recipient in lieu of an unsubscribe option.
- For mass mailings (“commercial”): “Soar Payments is a limited liability company registered in Texas, United States. Registered office: 123 Some Street, Somewhere, State Name, United States. Click to Unsubscribe.”
- For individual emails (“transactional”): “Soar Payments LLC. Office: 123 Some Street, Somewhere, State Name, United States. This email was not automatically generated, and sent directly to the intended recipient.”
Studies show that less than 10 percent of email recipients who receive emails with email disclaimers actually bother to read them. To prove this point, some professionals have gone so far as to create hilarious email disclaimers which, perhaps unsurprisingly, nobody seems to have even noticed until the author called attention to it.
Given that nobody actually reads email disclaimers, it’s not terribly surprising that the U.S. legal system is reluctant to give too much weight to them except in the limited instance of clarifying the sender’s intent, as opposed to creating any sort of obligation or contract upon the recipient.
Despite their limited effectiveness, however, it would be an oversimplification to simply dismiss email disclaimers altogether. As discussed in this article, when used appropriately, they can be an important (albeit limited) tool for small businesses to set forth ground rules and mitigate legal issues related to their operations.
So before sending your first company email, decide whether any of the legal advantages of email disclaimers are sufficient for you to warrant cluttering up your company’s email signature.
Disclaimer: This article is intended for informational purposes only, and is not intended as legal advice nor as the basis for the formation of an attorney-client relationship. The article provides general information, which may or may not be correct, complete or current at the time of reading. The content is not intended to be used as a substitute for specific legal advice or opinions.