RE: Legal disclaimers in e-mail (was Re: Back in with the group (carefulthis is crawled))

["Andrew Warren" <awarren -at- synaptics -dot- com>]

Roy Jacobsen wrote:

> IANAL, but I've always thought those legal disclaimers in e-mails were
> an exercise in futility. Can't imaging how they're supposed to be
> enforced, for example.

Actually, there may be strong legal reasons NOT to include these
disclaimers in your outgoing email:

1.  If you explicitly acknowledge the possibility of damage, you may
find yourself unable to deny responsibility for it when it occurs.  For
example: 

  I share confidential information with you under an NDA. 

  You try to email it to someone within your company, but you
accidentally send
  it to my fiercest competitor instead.

  If all your emails contain an "if you've received this message in
error"
  disclaimer, then when I sue you, it'll be hard for you to claim that
you were
  unaware that email could be misdirected. 

2.  A disclaimer may even expose you to ADDITIONAL liability: If you're
aware of a potential problem, you may be expected to do something to
prevent it.  "We accept no liability for any damage caused by a virus
transmitted by this email", for example, is just asking for trouble. 

3.  Giving the false impression that the disclaimer is legally binding
(when you know perfectly well that it isn't) can be a problem in itself.


4.  If you specifically prohibit some actions, it may be inferred that,
by omission, you are allowing all others, e.g., "Ok, I can't forward or
print this email... But I can take a JPEG screenshot of it and send THAT
to the newspapers, right?" 

5.  The text in most disclaimers is irritatingly stupid, so it makes the
sender look stupid, too.  I've seen, for example:

  "If you have received this e-mail in error, .... return the original
to us."

Even the standard boilerplate that appears in most disclaimers is
absurd.  How's a reader supposed to determine, for example, whether he
was the "intended" recipient of an email message?

-Andrew

=== Andrew Warren  - awarren -at- synaptics -dot- com
=== Synaptics, Inc - Santa Clara, CA
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

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