Reinhardt Buys

E-mail disclaimers explained

2004-06-22 11:06

Everybody seems to be doing it - adding elaborate liability "disclaimers" to the bottom of outgoing e-mail messages. Why? Probably in a misguided attempt to ensure legal compliance and risk management.

Everything in this e-mail and attachments relating to the official business of XYZ is proprietary to the company. Any view or opinion expressed in this message may be the view of the individual and should not automatically be ascribed to the company. If you are not the intended recipient, you may not peruse, use, disseminate, distribute or copy this message. If you have received this message in error, please notify the sender immediately by e-mail, facsimile or telephone and destroy the original message.

The sobering reality is, however, that the validity of these disclaimers have not yet been tested by our courts and most businesses draft and implement their disclaimers in such a way that they are invalid, unenforceable and useless.

Notwithstanding the many obvious benefits, the use of e-mail in the workplace invites significant risks and liabilities.

The purpose of e-mail disclaimers?

The main purpose of e-mail disclaimers is to i) ensure legal compliance, ii) manage and mitigate the various risks associated with e-mail use and iii) to practice good corporate governance.

Various statutory provisions require e-mail compliance: Section 171 of the Companies Act 61 of 1973 requires companies to state the names and surnames of directors and their nationality, "trade catalogue, trade circular or business letter bearing the company's name, irrespective of whether it is in electronic or any other format".

Section 59(1)(c) requires every company to "have its name and registration number mentioned in legible characters in all notices and other official publications of the company, including notices or other official publications in electronic format". Failure to include the required corporate information in business e-mails is a punishable offence.

Notwithstanding the legal compliance required from business e-mails, as stated above, the use of e-mail may result in significant legal risk, liability and harm to a business' reputation.

Disclaimer should appear at the top

"I simply don't believe that these statements [e-mail disclaimers] have any legal force whatsoever", says Jeffry Goldberg, a prominent US cyberlawyer. Simon Halberstam agrees. "It is fair to say that the chances of validity is enhanced when the disclaimer appears at the top, rather than the bottom of the e-mail message"

According to Michael Chissick, head of internet law at Field Fisher Waterhouse "[n]obody's sure whether this works, because nobody ever tested it. The disclaimers added to the end of e-mail are not legally binding, but it's always good practice to try to disclaim liability". "If you really must use a disclaimer, it should really be at the top of the message" argues Charles Christacopoulos, probably one of the finest legal minds alive today.

In my personal opinion, the use of so-called e-mail disclaimers is, at the very least, dangerous - South African courts will probably never enforce e-mail disclaimers available from the bottom of an e-mail. This common practice is much like placing a "Park at your own risk" sign at the exit of a public parking garage.

Most e-mail disclaimers are not disclaimers, but actually address issues such as confidentiality, privacy and access. To add to the legal confusion, most e-mail disclaimers are practically impossible to comply with and downright silly. Click here to visit a website dedicated to "Stupid e-mail disclaimers"

A group of lawyers recently hosted the e-mail disclaimer "Oscars": Longest disclaimer - UBS Warburg romp home with an astounding 1081 words. Most Incomprehensible Disclaimer - Rathbone Investment Management reach new heights of obfuscation. Best Bi-lingual Disclaimer - Aberystwyth Guild of Students pushes back the envelope of Welsh e-vocabulary. Best spoof disclaimer - Lester Haines. View all the winners here.

Legal compliance, risk management and good corporate governance are best achieved through the proper use of i) an e-mail legal notice (note, not a "disclaimer") available as a hyperlink from the top of every outgoing e-mail message; and ii) a corporate Electronic Communications Policy that governs the use of computers, e-mail, the internet, sms and instant messaging in the workplace.

How can such online "agreements" be binding?

The recipient of an e-mail message subject to an e-mail legal notice never signs the notice or indicate acceptance thereof through any specific action. How can such online "agreements" be binding, valid and enforceable?

Why would an e-mail legal notice available as a link from the top of an e-mail be legal and valid? The answer lies in the judgments of the so-called Ticket Cases and more specifically in the provisions of section 11 of the ECT Act. Click here to download the ECT Act

The following general principles determines the validity of "browse wrap" agreements like e-mail legal notices: i) it is not necessary to copy the whole notice into the body of the e-mail, it is totally legal to refer to the notice through the use of a hyperlink, ii) the hyperlink must be reasonably visible and available from the top of the e-mail message, iii) the hyperlink should be operational and, when clicked upon, open the full e-mail legal notice, iv) the full e-mail legal notice should download to normal browsers in such a manner that it may be read, saved and printed and v) to avoid tempering and maintain the integrity of the e-mail legal notice, businesses are encouraged to encrypt the documents in such a manner that copying and changes are frustrated without compromising the section 11(3) requirements.

Send Reinhardt your comments on this column

Reinhardt Buys is the managing director of leading IT law firm, Buys Inc. www.buys.co.za

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