It is doubtful whether e-mail disclaimers can ever provide comprehensive protection from legal liability.
Their use may however prevent lawsuits against a company, since the mere presence of a disclaimer may deter potential claimants from seeking compensation.
The doctrine of vicarious liability applies equally to e-mail as it does to other forms of correspondence - if the recipient reasonably believes the e-mail to be sent by someone representing the company, he is entitled to treat the contents of that e-mail as representing the views of the company.
There are six legal threats against which disclaimers which may be effective:
• Breach of confidentiality: By including a disclaimer, warning that the content of an e-mail is confidential, a company is expressly looking to prevent the exposure of confidential information.
If the receiver breaches this confidentiality, he may be liable.
• Accidental breach of confidentiality: If an employee receives a confidential e-mail and, by accident, forwards it to the wrong person, the employee, and therefore the company, may be liable.
Furthermore, e-mail may easily be intercepted and, although convenient and quick, it is not usually a secure method of transmitting information/data.
• Transmission of viruses: If an employee sends/forwards an e-mail which contains a damaging virus, the company may be sued.
The company should therefore warn, by way of disclaimer, that the e-mail may possibly contain viruses and that the receiver is responsible for checking and deleting the same.
• Entering into contracts: Written communications, including e-mail, may be used unintentionally to create binding legal contracts, so long as the individual sending them has actual or apparent authority to do so.
If a company does not wish certain employees to be able to create binding contracts by e-mail, it is advisable to include a disclaimer statement, that any contract must be confirmed by a manager or other authorised person.
• Negligent misstatement: A person is obliged to take care when giving advice upon which a third party relies.
If an employee gives professional or expert advice in an e-mail, the company may be liable in respect of any statement upon which the recipient may reasonably rely.
A suitable disclaimer may protect the company.
• Employer's liability: Although a company is ultimately responsible for the actions of its employees, including the content of any e-mails they send, a disclaimer may limit such liability.
If the company shows that it has properly instructed its employees not to make and transmit libellous, inappropriate or defamatory statements, responsibility may be avoided if an employee breaches these rules.
It may demonstrate this by including an e-mail disclaimer to that effect and by implementing an e-mail policy which clearly warns employees against misuse of e-mail.
This policy should be issued to each member of staff. It should set out the sanctions for various types of breach of the policy and should be tied into relevant contracts of employment/services.
No disclaimer will protect a company against actual libellous or defamatory statements - the most that it may accomplish is a reduction in responsibility if the company has acted responsibly and done everything in its power to prevent employees from offending.
If a disclaimer is prepended (placed at the beginning of a document), there is more of a chance that it will be read before the message.
If it is placed after the message, it may be read too late to act as protection.
The choice as to prepended or appended disclaimers will ultimately depend upon how secure and confidential e-mail communications need to be.
Most disclaimers include a statement such as “This message is intended for the addressee only …..”
This may assist one who inadvertently sends an e-mail other than to the intended recipient to mitigate loss occasioned by a breach of confidentiality, in the hope that, in the event of a claim, the Court will accept that the communication was not intended to reach the actual recipient.
This article was written by Ayshea Khan, based at our Thurrock office.
