Every day thousands of emails go out with email disclaimers. Some of the disclaimers are at the top, others at the bottom and still others contain a simple hyperlink which takes you to the actual text of the disclaimer. But are they really useful?
There are three basic questions that should be used to consider what (if anything) should be inserted into a disclaimer:
#1 Are you trying to reach an agreement or simply notifying the other person?
In general, if the text of the disclaimer is seeking to achieve some kind of an agreement it will not be enforceable, unless there is an affirmative response from the person. This is because there is no clear consensus between the parties (and also, let’s be honest, most people do not even read them). For example, an email disclaimer cannot bind the recipient to a duty of confidentiality unless that duty already exists in law (for example if the recipient is a police officer investigating a case) or the recipient actually agrees beforehand to treat the email as confidential. This was stated in the European Union case of Philips  E.P.O.R 41 which held that the recipient can elect whether to keep the email confidential or not.
In contrast a disclaimer notifying the recipient of something, such as the fact that this is a business communication that may be monitored by the employer, can be quite useful as it goes to show that both the sender, and more important, the recipient should have been aware of the employers’ right to intercept the communications. This also holds true for e-mail disclaimers which are used to discharge the notification duties in terms of POPI.
#2 Do you routinely breach your disclaimer’s statements?
Another useful question is whether the email disclaimer always applies to every email you send? For example, inserting ‘this email does not contain legal advice’ into an attorneys’ email disclaimer is not helpful if it can be proven that the attorney does provide legal advice by email, even infrequently. The fact that this is automatically inserted both when appropriate and when it is inappropriate means that the reasonable reader is entitled to disregard the disclaimer.
In contrast if a disclaimer asserting the content is not legal advice which is only used when, in fact, the email is not intended to be legal advice, is much more likely to be enforced by the courts. This means that you should either:
- Only include something in your disclaimer that will always be true, or
- Insert / don’t insert the email disclaimer as the situation dictates.
#3: Are you trying to vary the actual content of the email?
A disclaimer cannot vary the content of an email which is self-evident. For example, an email stating ‘payback is a b****’ signed ‘your most determined, unstoppable and visceral enemy’ cannot suddenly become non-threatening because the email disclaimer states that ‘Not one word herein should be construed by anyone as meaning threating or violent intentions’ (this actually happened in the Californian case of Romero v Romero 2011 Cal, App. Unpub. Lexis 8706 (Cal. App. 4th Dist, Nov. 14, 2011)).
Similarly, stating that ‘this email should not be considered to be a written amendment to an agreement’ could fly in the face of the actual intention of the parties as set out in the body of the email. This last point is particularly important as the relatively recent South African case of Spring Forest Trading v Wilberry (725/13)  ZASCA 178 (21 November 2014) has made it clear that a mere email with the name of the sender (‘Greg’) at the end of the email is considered to be both ‘in writing’ and (somewhat incredibly) ‘signed’ by the sender. This means that it is possible to amend all your paper agreements with a simple email! If you don’t like that, you are going to have to prohibit e-mail expressly in the contract. Doing it in an e-mail disclaimer is not going to help.
So where does this leave you? While email disclaimers can be useful, their use is limited. An email disclaimer will not stop a defamatory statement being a defamatory statement, nor will it help an attorney who is clearly providing legal advice from claiming that the email content was not legal advice. However, it may help to contain a leak of information (if for no other reason than the recipient may be less likely to send it out if it states ‘PRIVATE AND CONFIDENTIAL’) and it can make it difficult for the recipient to allege that they were unaware that their racy emails could be monitored. Where something is important (such as making sure that the recipient knows that the content is protected by legal privilege or that the email is a without prejudice offer) then it is better to state that specifically in the body of the email, rather than rely on the email disclaimer where it may be missed.
Oh, and this isn’t legal advice ;).
(This article was originally published in the March 2017 edition of Juta’s Consumer Law Review. What to get the next edition? It is free! Subscribe here.)