We asked AUT law professor Allan Beever whether those words at the bottom of the page were actually useful, and if so, what they should say?
The first thing we discovered was that they aren’t actually disclaimers at all – at least legally. A disclaimer is officially what you get on books, for example, when the author is worried that people are going to read the book and rely on the information (to make an investment decision, for example) and come a cropper and decide to sue. The disclaimer basically says that the author has done their best to make the stuff they have written accurate, but if you choose to rely on it and it isn’t, that’s tough. The law is a real mess in this area, Beever says, hence the need for disclaimers.
So what’s with all these disclaimers, nay cautions, at the bottom of emails. Why are they there?
The purpose, Beever says, is to create a sort of legal contract with the recipient of an email, telling them that there might be something confidential or commercially sensitive in the email and warning them that if they use it, or pass it on, they could be sued for breach of confidence.
Could they be sued?
Yes, particularly if the person sending the original email can prove that they have suffered loss from you using the information – either financially or in terms of pain or embarrassment etc.
Isn’t that the case anyway – I’m not allowed to use someone else’s confidential information am I?
True, the law says you aren't allowed to use or forward information if a “reasonable person” would have realised the information was confidential. Still, the warning at the bottom means you would find it more difficult to argue in court that you didn’t know the information was confidential.
Do they have to be so long?
Not really. All you really need is a statement which says “This email may contain confidential information, so please don’t use it”. Possibly companies make them long-winded so it’s harder to argue you didn’t see them.
Has this area been tested in court?
Not necessarily the email disclaimer part, but the 2014 case of Earthquake Commission v Krieger, involving a blogger who received and posted a spreadsheet containing information about 83,000 EQC claims, shows judges doesn’t look kindly on people who give away other people’s information. The court found that “a reasonable reader” would have realised the information was confidential.
Did Krieger have to pay up?
It’s hard to tell, as often any payments are confidential between the parties, but the judge told him to take down the spreadsheet. In general, someone would have to prove damage to get a payment.
These clauses are on the bottom of the most banal emails. Surely no one actually reads them?
Putting them as a ubiquitous signature definitely dilutes the power of the warning. And certainly, we might get to the stage where someone could argue that because every email contains one of these warnings, there was nothing to alert them to the fact that this particular email contained anything confidential. For this reason, your lawyer might argue that you should save the caution for emails containing sensitive information. However, from a company’s perspective, they are trying to protect themselves from employees making mistakes.
Sometimes the warnings are way down the bottom of the email – after the signature and all manner of chunky logos. Would that make a difference?
Certainly the more difficult it is for the reader to find the warning, the more likely they could get away with using the excuse that they didn’t see it and didn’t realise the information was confidential.
What’s the best way of protecting yourself against mistakenly sending confidential information to the wrong person?
Don’t send stupid emails. All of this is ambulance at the bottom of the cliff stuff. The real problem is people tend to be unguarded in emails and send emails they shouldn’t be sending. The warnings are simply ways of minimising the effects of people’s mistakes. Another problem is that even if legally you aren't going to get into trouble, you risk reputational damage or annoying a client. You’d be better spending money and energy trying to prevent people sending confidential information by mistake.