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It is essential your business uses an email disclaimer when sending communications via email. There are a number of reasons to use an email disclaimer, including to:
- set out what recipients can and cannot do with the email;
- limit your legal responsibility for employees;
- protect against a confidentiality breach;
- mitigate liability for computer viruses; and
- set your contractual intentions.
While email disclaimers are not bulletproof, this article looks at each of the reasons why it is worth having an email disclaimer in your business emails.
1. What Recipients Can and Cannot Do
An email disclaimer is useful for setting expectations. You can use one to provide guidance to an email recipient about what they can and cannot do with the email.
The disclaimer can also state that any reliance on the information in the email is at the recipient’s risk.
2. Employer Liability
As an employer, you may be liable for the acts of your employees. Here, you will be responsible for your employee’s acts as if your business had committed them. As such, you may wish to take steps to limit your liability for the unapproved acts of employees.
You should provide a policy on acceptable technology use by employees, which includes email use. Further, the employee’s employment agreement should require that the employee complies with these policies.
An email disclaimer by itself is unlikely to exclude you from being responsible for your employee’s actions during their employment. However, if used in conjunction with a staff email policy, it is wise to include an employer liability statement in your email disclaimer. For example, the employer liability disclaimer may read:
‘If this is a personal email, any opinions or representations do not necessarily reflect the views of [insert your business name]’.
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If confidential information is to be sent via email, an email disclaimer identifying that the information may be confidential can also be beneficial. The confidentiality part of the disclaimer can help establish that the email and any attachments may contain privileged and confidential information and information which may be protected by copyright.
You may also choose to include an express direction in your email disclaimer, similar to the following:
‘You must not use, reproduce, copy or disclose this information other than for the purposes for which it was supplied.’
While adding a confidentiality requirement to an email disclaimer is recommended and unlikely to cause you any harm, be careful not to rely solely on the disclaimer. A recent case in Australia suggests that if you know you are sending confidential information, you should include a disclaimer regarding the confidentiality of the content at the top of the email. This is because recipients are unlikely to read a disclaimer in the footer of an email.
This is especially true if the email’s context suggests that the email is not confidential. For example, part of this context may include the number of recipients of the email.
When sending business emails, you may include or receive personal information in these emails. A number of factors will determine the best way to handle privacy in an email, including:
- how often you purposely collect personal information via email; and
- your business’ status under the privacy laws in Australia.
Sometimes, it may be advisable to include a privacy collection notice which is separate or in addition to an email disclaimer.
Alternatively, you may include a simple statement in your email disclaimer about privacy, similar to the following:
Another reason to include an email disclaimer is to disclaim your liability for any computer viruses which may be contracted via an email you send.
To address the risk of viruses, you should acknowledge that there may be a risk of a computer virus being transmitted via email. Furthermore, you should state that you do not accept any liability. Typically, you may outline that the recipient releases you from any liability for damage caused by the email or its attachments from:
- corruption; or
- unauthorised access.
To protect your own business from viruses, you may use anti-virus software. This software may, at times, monitor, scan or block emails and attachments. It is worth also noting this in your email disclaimer.
6. Contractual Intentions
Your business emails are likely to include email signature blocks.
While emails are generally not intended to form a contract, if the email contains an express promise to do something, there is a risk the email may be argued to create a binding contract.
If you send an email offering to buy or sell something, there is a greater risk the email may be seen to be a contract. Accordingly, you should include an express disclaimer that the email is not a contract. Ensure you make this prominent within the body of the email.
While you should include a prominent statement where the risk is increased, in general, it can be useful to include in your email disclaimer a statement that the email does not constitute a binding contract unless it is expressly stated and agreed to form a binding contract.
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This guide will help you understand the directors’ duties that apply to you within the Australian corporate law framework.
An email disclaimer can be useful to address a number of key concerns which may arise when your business sends out emails. It is helpful to include disclaimer statements relating to how the recipient can use the email and your liability for:
- employee emails;
- computer viruses; and
- your contractual intentions.
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Frequently Asked Questions
An email disclaimer can set out what recipients can and cannot do with the email (including its contents and any attachments). Additionally, it protects a business against a confidentiality breach and sets a business’s intentions with respect to the information being shared. You can also use it to protect any personal information sent in communications.
You cannot guarantee that a recipient will read your email disclaimer, especially as it is usually tucked away in the footer of your email in small font. As such, you should not rely solely on an email disclaimer as a means to protect confidential information that is being sent via email. Best practice includes entering into a confidentiality agreement with the recipient to ensure there are clear contractual obligations regarding how confidential information can or cannot be used by the recipient. If the individual breaches the confidentiality obligations in the confidentiality agreement, you may have a claim for breach of contract.
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