TO INCLUDE OR NOT TO INCLUDE: THE ART OF EMAIL DISCLAIMERS

Every so often, we get a question from one of our members that sometimes leads us to question our conventional understanding of certain topics. Such was the case when one of our members asked us: “Do I really need to include a disclaimer at the bottom of my emails?” Being an attorney, my automatic response to his inquiry was “of course you do!”

Ever since I started practicing law, I have included a disclaimer at the bottom my emails that states:

PERSONAL AND CONFIDENTIAL:  The information contained in this message may be privileged, confidential and protected from disclosure.  If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited.  If you believe you have received this e-mail message in error, please email the sender.

When I finally took to the time to read this three-sentence blurb that had become a permanent staple of my email signature, I started to question whether this disclaimer actually did anything and whether I should even include it.

As I delved deeper into this issue, it became apparent that the inclusion of disclaimers in an email has its early roots in the era of fax machines. While the use of fax machines is becoming less frequent, one trend developed during its heyday has now become routine practice among users of email. You guessed it — disclaimers.

In an attempt to retain the confidentiality of certain documents or documents ending up in the wrong hands, senders of a fax used cover sheets that identified the intended recipient and similar to a email disclaimer, the instructions for the unintended recipient and an ominous warning for those who failed to follow those instructions.

Fast forward to 2020, the use of email disclaimers now runs rampant. However, two questions remain: (1) Are they effective? and (2) Should you use one? And just like all great legal questions the answer is, it depends.

First and foremost, one must determine the intent of the email disclaimer. For example, the disclaimer contained at the bottom of my email is intended to retain and protect the confidential nature of the email. To achieve this purpose, the disclaimer attempts to create a contractual obligation on the recipient to preserve confidentiality and prohibit the unauthorized disclosure of the contents in the email. Contracts, however, require that the two parties agree to the terms. See Certified Fire Prot. Inc. v. Precision Constr. Inc., 128 Nev. 371, 378, 283 P.3d 250, 255 (2012) (“Basic contract principles require, for an enforceable contract, an offer and acceptance, meeting of the minds, and consideration.”) This proves problematic as simply opening and reading an email does not demonstrate a recipient’s consent to be bound by the terms of the disclaimer. Accordingly, since there is no mutual consent, the recipient is not bound to comply with the terms of the disclaimer.

Other email disclaimers might be aimed at disclaiming certain legal obligations and liabilities, for example, the formation of a contract or the potential of a computer virus.

In Dhillon v. Zions First Nat’l Bank, the Eleventh Circuit Court of Appeals concluded that the inclusion of an email disclaimer that effectively put the recipient on notice that an email alone, even where it contained terms of the eventual agreement, did not constitute acceptance and the formation of a contract. The court held that the “facts—specifically, the e-mail disclaimers—foreclose[d] any contention that Zions sought to form a valid contract via e-mail.” Dhillon, 462 F. App’x 880, 883 (11th Cir. 2012).

The effectiveness of an email disclaimer concerning the threat of a potential virus is less certain. Again, the disclaimer is attempting to create a contract wherein the recipient of an email has agreed to waive their right from seeking legal recourse against the sender. As mentioned above, there is no mutual consent between the parties and thus no formation of a contract.

Lastly, many people with an interest in maintaining their copyrights will include an email disclaimer indicating that the contents of the email may be subject to copyright law and that any unauthorized disclosure is strictly prohibited. However, such a disclaimer is likely unnecessary as the email, in and of itself, might already be copyrighted.

In order assert copyright protection, the work need only be “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C 102(a). Generally, with the exception of a one worded email or a copied email, an email would likely be deemed an original work due to the low threshold to meet originality set by the U.S. Supreme Court. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S. Ct. 1282, 1287 (1991)(“…the requisite level of creativity is extremely low; even a slight amount will suffice.”); see also, Matthew Bender & Co. v. W. Publ’g Co., 158 F.3d 693, 702 (2d Cir. 1998)(For a work to be in a fixed tangible medium of expression, it must be shown that the work can be “perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”) Being that an email could likely meet the requirements of a tangible medium of expression, an individual need only show some modicum of originality to assert copyright protections. As a result, an email disclaimer asserting copyright protection is likely unnecessary.

In sum, individual businesses should evaluate their specific need for an email disclaimer and determine, based on the nature of its use, whether to include one. As stated above, it is unlikely that many of the disclaimers would be effective and legally enforceable. Furthermore, the blanket use of disclaimer could potentially further diminish the effectiveness of a disclaimer. Nevertheless, the appropriate use of an email disclaimer could prove pivotal in certain types of disputes.

If you have any question regarding your company’s use of an email disclaimer, reach out to the Nevada Association of Employers where we can provide guidance on the appropriate use of an email disclaimer.

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