Annual tirade #422

[dsrtao]

Email disclaimers. Do not use. Bad idea. Your company looks foolish, not professional.

If you are an exception, you are a lawyer.

If you send one to a mailing list, it looks particularly stupid to have a "you must immediately destroy this information and report it to me" disclaimer.

If you are in sales, having "The statements and opinions expressed in this e-mail do not necessarily represent those of $COMPANY" at the bottom of your message looks really foolish. Yes, I mean you.

If your company is doing this, find out why. Persuade the person who made this decision to work for a competitor. Your company will prosper.

Comments

[dsrtao]

I roll to disbelieve.

The prosecution says that your email of the 23rd clearly promises to pay one million dollars to the IRS by the end of the week. You say, ha! it doesn't count because I have this disclaimer that says nothing sent in email is the official position of the company, and also I had my fingers crossed.

Result: you owe a million dollars, plus interest, plus penalties, and probably court costs.

Case 2: the prosecution says that your salesperson's email of the 23rd to your customer constitutes sexual harrassment, and that since there's no stupid disclaimer at the bottom, your company obviously supports that.

You show the court the records of sending your salesperson to sexual harrassment training, your clearly stated policy, and the fact that immediately after receiving the complaint, you investigated, reviewed the incident, fired the salesperson, and sent a letter of apology to the complainant.

Result: your company is dropped from the lawsuit.

The only situation in which automatic email disclaimers make sense is a caution that when you talk to a lawyer, it's not Legal Advice unless you've already reached an agreement to get advice from the lawyer.

[dlevey.livejournal.com]

Case 3:
You're in casual correspondence with a (potential) customer, and you're not the person in charge of negotiations. However, the customer decided that your off-hand comment about a new potential feature is the reason why they bothered to sign on the dotted line, and the company's official decision to forgo that feature has cost the customer lots of time and money. They now sue because your email message, which had no disclaimer, was viewed as the official word of the company.

Case 4:
Flunkie send sensitive contract information to the wrong party by mistake, clicking on an external address in their address book instead of the desired adjacent address. Recipient now uses this disclaimerless information to do some insider trading. Absent that disclaimer, your flunkie writing from a company address with confidential information may suggest that the company itself was complicit in the information-passing.

These disclaimers are not (necessarily) primary protection in a court case, but also a protection against something like this seeing the inside of the court. They're additional discouragement against a plaintiff pursuing the case rather than dropping or settling. Never mind the publicity, which always hits page 1, while the retraction/correction is buried on page 12.

What bugs me the most about them, though, is their placement. When they're at the bottom, they don't protect anything. They need to be at the top, protecting everything below. While at the bottom the sensitive information has already been read. (This from a legal expert a number of years ago, so it may not be as valid anymore)

[dsrtao]

Case 3 is a contract case, in which the contract is going to be scrutinized, almost certainly according to the UCC article 2, and the warranties and representations clauses will be considered. At worst, your off-hand comment will be taken as an inducement to sign the contract, not part of the contract itself.

Case 4: how is this different if the disclaimer exists, but the defendant points to all the other email that sent from the company
which bears the same disclaimer but implicitly or explicitly tells the receiver to ignore said disclaimer? Because that's what's going to happen.

Using them on all email is stupid. Placing them at the bottom is stupid. Pretending that they ensure confidentiality is stupid. Hoping that they will keep you out of court is stupid.

And making the company look stupid is not very clever.

[dlevey.livejournal.com]

I'll agree that putting the disclaimer on every piece of mail is silly, unless you *never* have anyone speaking on behalf of the company via email. And at that point, why have email connectivity.

For better or worse, these disclaimers are the standard. You know the companies I deal with; every single one, without exception (as far as I can tell), uses a disclaimer of some form. I've heard tell (though I can't point you at a specific instance) where these disclaimers *have* tipped the balance. Doesn't mean it makes sense, doesn't make them right. It just means that they have a reason for being there. The *lawyers* I deal with aren't bandwagon types; they really do know their jobs and have reasons for doing the things.

But I still think they're stupid in reality. Sadly, the law is not reality.