Disclaimers on emails

[*crikey*mate*]

Do they mean anything?

Are they legally binding?

Here's a garden variety example of one...

"DISCLAIMER: This e-mail and any file(s) transmitted with it, is intended
for the exclusive use by the person(s) mentioned above as recipient(s).
This e-mail may contain confidential information and/or information
protected by intellectual property rights or other rights. If you are not
the intended recipient of this e-mail, you are hereby notified that any
dissemination, distribution, copying, or action taken in relation to the
contents of and attachments to this e-mail is strictly prohibited and may
be unlawful. If you have received this e-mail in error, please notify the
sender and delete the original and any copies of this e-mail and any
printouts immediately from your system and destroy all copies of it."

[cherry*135]

Are they legally binding?

Have you not covered that in a few years of studying law?

Do you not have access to resources or legal contacts to be able to find that out?

[*crikey*mate*]

I know the answer - but I bet a lot of people don't. We studied it in both Contracts and Torts.

Hopefully a few people will now google to find out and become more informed.

[cherry*135]

Do we need to know?

I assume the disclaimers are legally binding. If someone receives an email (with a disclaimer at the end) which includes confidential info and they decides to distribute it to others, they can't claim, they didn't know they shouldn't do that.

[*crikey*mate*]

maybe you should google Am3

Moorna and Deb were on track

If the disclaimer is at the end - what happens if a person never read to the end? There is no law saying a person has to read to the end of an email.

They may have distributed the contents without ever knowing of the disclaimer's existence.

You have a slight chance of making it stick if it is at the top of the email - Contracts 101 teaches us that any special terms and conditions must be specifically bought to our attention.

But if you read and interpret what the garden variety disclaimer actually says - they're just full of big words lots of mays and may nots and quasi legal talk - nothing very specific, eh?

In short - they mean diddlysquat but you might have some hope if it can be proven it was specifically bought to the recipient's attention before they actually did anything with the contents.

[*crikey*mate*]

An email on its own is very rarely a legally binding contract simply because there has generally been no consideration or intention to be legally bound. Capacity is another questionable category, even though you may be able to argue offer and acceptance - but you need all 5 - two just don't make a contract.

This is especially true for unsolicited emails.

Similarly, any disclaimers that follow the original email have the same effect as above - absolutely nuffin!

[freddie*rooster]

OK if the rightful receiver of such an email was to copy and forward that email and attachments without the disclaimer attached, then the receiver distributed the email, what would be the consequences of that behaviour?

[*crikey*mate*]

oh, and a disclaimer of this nature cannot negate a tort in either defamation or negligence.

[cherry*135]

I don't want to google.

[*crikey*mate*]

OK if the rightful receiver of such an email was to copy and forward that email and attachments without the disclaimer attached, then the receiver distributed the email, what would be the consequences of that behaviour?

gawd freddie -

taking a stab in the dark here....

that is two separate scenarios.

Firstly you have to establish if the intended recipient was even aware of the disclaimer before they distributed it. Maybe they just cut and pasted the top part of the email? Dunno - might be harder to wriggle out of that one cos it does suggest that the sender was aware of it's existence - (but how do you prove they read it? It's not enough that it is just there - (some drycleaning case supports this - too lazy to look it up though - Curtis or something I think) but in the case of the garden variety disclaimer in the example - it doesn't really say anything - of course everyone needs to be conscious of the law but that's not what the disclaimer is doing.

But as I said - garden variety disclaimers such as the one above mean diddlysquat. The act of receiving an email does not automatically mean you agree (ie acceptance) to any accompanying terms and conditions.

If you take it at face value, it even means you can't even show your lawyer to seek legal advice.

As for the third party receiver - different act - I can't see why there would be any consequences to the third party.

[*crikey*mate*]

and if it's an attachment - how do you prove that the sender even read the actual email at anytime far less before they became aware of the disclaimer?

Maybe if the actual email contained only the disclaimer and then you had to click on that disclaimer to reveal the attachment? Like a hyper link?

Dunno - just guessing on that bit