Will Schwalbe asks if confidentiality disclaimers on e-mail messages are as stupid as they look. You know the ones: The dense bits of legalese at the end of an e-mail message that say, in essence, that if you aren’t the intended recipient of this message, you’re not allowed to read it, save it, or forward it on to anyone else. I’ve collected a few representative examples:
Confidentiality Notice: This e-mail message including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. If you are the intended recipient, but do not wish to receive communications through this medium, please so advise the sender immediately.
I always say, if I’m not the intended recipient, then why the hell did you send it to me, and why are you putting the onus on me to do the right thing when you’re the one who screwed up?
I particularly wonder about that phrase, “Any unauthorized review, use, disclosure or distribution is prohibited.” Prohibited by whom, or by what statute? Is that phrase enforceable? Or is that like the software licenses that say “by installing this software, you agree to be bound by the terms of this license”?
And how is this supposed to work when the message is sent to an e-mail list (like a LISTSERV list, or a Yahoo or Google group), especially those that archive messages on a public website? (That’s where I got the examples in this post, from lists I belong to.)
Here’s one that struck me as a masterpiece of legal gobbledygook:
Disclaimer and Confidentiality Note: Everything in this e-mail and any attachments relating to the business and/or activities of [full company name] and/or its subsidiaries (hereinafter collectively referred to as `[company]´) is proprietary to [company]. The information in this e-mail is confidential and is legally privileged. [Company] does not own and/or endorse any other content. Views and opinions are those of the sender unless clearly stated as being that of [company]. This e-mail is intended solely for the addressee. Access to this e-mail by anyone else is unauthorised. If you are not the intended recipient, any disclosure, copying, distribution or any action taken or omitted in reliance on it, is prohibited and may be unlawful. Please notify the sender immediately if it has unintentionally reached you. Whilst all reasonable steps are taken to ensure the accuracy and integrity of the information and data transmitted electronically and to preserve the confidentiality thereof, no liability or responsibility whatsoever is accepted if the information of data is, for whatever reason, corrupted or does not reach its intended destination.
I like that bit of weasel-wording: “any disclosure, copying, distribution or any action taken or omitted in reliance on it, is prohibited and may be unlawful.” [Emphasis added.] “May be unlawful,” but maybe not, eh? And maybe this is just a bunch of smoke-blowing.
(On a tangent: I wonder what the bandwidth cost of these things is? That last one is a real corker, weighing in at 175 words, or 1,140 characters with spaces. What percentage of e-mail traffic is taken up by this legalese?)
Over on Will’s blog, I said I thought these were the result of overlawyering, but I’ll see if I can get the legal writing gurus—Wayne Scheiss, Ray Ward, and Mister Thorne—to venture an opinion on the actual legal value of such disclaimers, or if they know whether they’ve ever been challenged in court.