From: William J Poser (firstname.lastname@example.org)
Date: Sun Dec 14 2008 - 18:01:21 CST
Let me preface this by saying that I am referring specifically
to those parts of disclaimers that prohibit the wrong recipient
from reading the message and those that claim to enforce a requirement
of confidentiality. Some other sorts of disclaimers may have some
legal force, e.g. a notice to the effect that only designated officers
of an institution have the power to bind it and that in the absence
of information that the sender has this authority nothing in the message
should be construed as binding.
The question that one needs to ask about a confidentiality disclaimer
is: what basis is there for it to be binding on the recipient? This is
true of any communication. If you send me an email that says: "failure
to respond to this email will result in your owing me $100", it is,
in general, meaningless. You can make any demands you like, but in the
absence of some reason for your demands to be binding on me, I am
perfectly free to ignore them.
So, just because an email contains a statement that its content is
confidential and meant only for certain recipients and that if I am
not one I may not read it, this does not impose any obligation on me any
more than the hypothetical demand for $100.
One situation in which an email might be binding on me would be
if there were a contractual relationship between us. If, for example,
I have signed a non-disclosure agreement that prohibits me from
disclosing your confidential information, an email disclaimer could
indeed serve as notice to me that the information in that email is
covered by the NDA. However, no one signs an NDA in order to get onto
the Unicode list, and generally most recipients of email have not
agreed to NDAs with the senders of email. A similar situation would
exist if for some reason the recipient has a fiduciary responsability
toward the sender, which could result either from contract or from
statute, but again, there is rarely any such relationship between
the sender and recipient of email.
One situation in which a disclaimer might have an effect is where
the disclosure of certain information is forbidden by statute.
For example, in general the disclosure of trade secrets is a civil
matter and can only be penalized if the discloser has a contractual
obligation not to disclose them. However, there are jurisdictions in
which the disclosure of trade secrets is a criminal offense of which
the discloser is guilty even if he or she has no legal relationship
to the owner of the trade secrets, provided that he or she knows
that the information is in fact a trade secret. I believe that this is
the law of California. A disclaimer could serve as notice that the
information is a trade secret and thereby create criminal liability
for disclosure. However, this is the kind of case in which the blanket
use of disclaimers destroys their impact - if everything you send out,
even messages obviously not containing trade secrets, warns that it
does or might contain trade secrets, the recipient has no reason to
believe that any particular content is in fact a trade secret.
The central principle involved is that in the absence of a contractual
or statutory duty the recipient of email is free to disclose whatever
he or she wishes, and is free to read the email in any circumstances,
even if he or she may not disclose the contents. The second relevant
principle is that receiving and reading an email does not magically
create a contract between the sender and the recipient.
Here are a few references:
The last is from a law firm. It reflects the law of New Zealand, but
in the absence of specific legislation, all countries in the English
Common Law tradition are probably about the same.
Disclaimer: I am not a lawyer (though my brother and sister-in-law are)
and this is not legal advice. :)
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