We've all seen those email disclaimers automatically added at the bottom of emails we receive. Are they really necessary?
First some ancient history, from the author's personal recollections.
In about 2005, shortly after email arrived and took over from fax machines, the IRS issued a revision of Circular 230 requiring that if a tax practitioner is providing informal tax advice, a disclaimer has to be added at the end to state that the email is not providing formal tax advice.
Law firms that had tax practitioners had to decide whether they should program their email systems to automatically add this disclaimer only to emails from the tax practitioners, or from all attorneys. It was easier to automatically add the disclaimer for all attorneys. Clients saw attorneys adding this disclaimer, and some of them began adding disclaimers in their emails.
At about the same time, several court cases showed the possible evils of emails being sent to the wrong person, or of internal emails being disclosed in lawsuits. So law firms started to automatically add disclaimers that the emails were confidential, and that if the email was received by someone who was not the intended recipient, the email should be destroyed and not read. Some of their clients followed suit.
Then the IRS decided in about 2014 to require that tax practitioners stop using the Circular 230 disclaimer, so this was done, but the other disclaimers about confidentiality and misdirected email were retained.
That's how we got to where we are, with many people using automatically added email disclaimers. And now we wonder whether they are helpful or necessary.
Email disclaimers probably would not be helpful in most circumstances, because mere receipt of an email cannot unilaterally form a legally enforceable contract – the recipient never agreed to the disclaimer. So email disclaimers, alone, cannot unilaterally create legal obligations.
But they may be helpful in preventing the creation of legal obligations, by giving notice, which could be useful in certain circumstances. For example, a business could add an email disclaimer stating that even if price or other terms are discussed, the email cannot create a contract and that no contract is binding on the business unless signed by a corporate officer. Or it can add a statement that the contents of the email reflect the opinion of the sender, and not necessarily the position of the sender's employer.
So automatically added email disclaimers are not really necessary for most businesses, but they may make you feel better by stating explicitly what you think all recipients of your emails should understand implicitly: the email is confidential; should be read only by the intended recipient; reflects the opinion of the sender and does not necessarily reflect the position of the sender's employer; and does not create a contract unless approved by management, even though it may discuss price or other terms.
But note that laws in other countries may differ, and in some contexts, such as federal government agencies and heavily regulated industries (such as the securities industry), email disclaimers are required or strongly advisable.
This article was originally published in the November 2022 issue of Hawaii Business Magazine.
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