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December 22, 2005 - EMail Disclaimers - Should you use them?

You've probably seen that on many emails in your inbox there is a two or three line disclaimer at the bottom. Many organizations and companies enforce all their employees to use these disclaimers on any outgoing emails. How effective are these disclaimers? Would they hold up in a legal case? I have done some searching and research into this and found out that they are mostly useless. Here is why:

No Confidentiality in EMail
EMail is not secure, when you send your email it can visit dozens of locations before it gets to it's final destination. So if you are sending something that is confidential you are taking a huge risk. If you do need to send confidential information then encrypt it. If your message is supposed to be confidential, what are you doing emailing it?
Click here to learn how to encrypt your email.

Your Disclaimer is Unilateral
How can you put terms in your email when the recipient doesn't have a chance to agree to them. Think about it, if this was really something that would be upheld you could put a disclaimer stating that the recipient must pay one dollar for each word they read and they wouldn't have a choice. The only close to acceptable situation would be to have the disclaimer at the top of the message, before the recipient could read it's contents.

Having a Disclaimer Increases your Vulnerability
If you don't have a disclaimer, existing confidentiality laws will apply - similar to a phone conversation or any other communication where confidentiality is assumed. If you have a disclaimer and it isn't 100% inclusive of all circumstances there may be a loop hole and you could get yourself or your company in trouble.

What I suggest is that if your company has a terms of service or privacy policy on their website, simply provide the link in your disclaimer. There is no disclaimer that can protect against actual libelous or defamatory content. The most a disclaimer can accomplish is to reduce the responsibility of the company, since it can prove that the company has acted responsibly and done everything in its power to stop employees from committing these offenses.

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