Is the Confidentiality Disclaimer at the Bottom of an Email Legally Binding?

iStock/Mlenny
iStock/Mlenny

For most of us, a day doesn’t go by without receiving a notice that “This email and attached documents may contain confidential information” and that you’re not authorized to read it if you aren’t the intended recipient. Anyone who has ever received one of these has probably wondered: How legally binding are these boilerplates?

The answer is: not very—though that’s not the entire story.

It’s generally agreed by legal experts that the generic boilerplate at the end of many emails has no legal weight behind it. It’s attempting to create a contract, but for a contract to apply both parties need to agree, which doesn’t happen in this case. At best it may make people paranoid about sharing your email and have an effect that way, although not necessarily through the power of law.

One case followed a doctor looking into suing his employer. Perhaps foolishly, the doctor emailed his lawyer from his work email, meaning that the employer felt that any confidentiality had been waived by use of the work email. The doctor disagreed and went to court. Part of the case was that every email sent by the law firm had the same standard disclaimer, but on that point the court ruled “[the law firm’s] pro forma notice at the end of the e-mail is insufficient and not a reasonable precaution to protect its clients.”

And their scope can be limited. One famous case seeking a protective order involved an extremely threatening email that included lines such as “Your most determined, unstoppable, and visceral enemy,” ending with "DISCLAIMER: Not one word herein should be construed by anyone as meaning violent or threatening intentions, and instead the entire contents is to be taken by the strict literary meaning. There have not been, and will be any elucidated threats of violence or intent, either expressed or implied, within the entirety of this document.” The court was unimpressed, granting the protective order and explaining "You can't send documentation of both a threatening and harassing manner and then think that you can get away with that by simply putting a disclaimer on it."

SHOULD I HAVE ONE?

This is not to say it’s useless to put a disclaimer on your emails, particularly with professional correspondence. In 2011 a lawsuit dealt in part with whether a customer list was a confidential trade secret. To maintain a trade secret, you need to take “reasonable efforts” to protect it. And the court determined that for a slew of reasons this customer list didn’t qualify as a trade secret. One of the issues brought up by the judge—though by no means the only one—was that the customer lists were sent to the other party on multiple occasions, and “The emails contain no disclaimer about the confidentiality of the materials attached.” That’s not to say the sending party would have been protected had they included the disclaimer, but the lack of one was a knock against them.

Disclaimers can also protect against contracts being formed. In one case, a real estate investor contacted a bank to inquire about some properties for sale. They signed a negotiation agreement acknowledging that email messages wouldn’t be considered binding. Over email he then made an offer, the bank made a counteroffer, and the investor agreed. The officer at the bank, however, had a disclaimer explaining that any price or term mentioned was not binding until the executive management committee signed off. Eventually the bank declined the agreement and the investor sued arguing breach of contract. The court ultimately ruled “in light of the e-mail disclaimers and the negotiation agreement [the investor] signed, any belief he had that his e-mailed acceptance of the counteroffer had created a binding contract was unreasonable.”

SO WHAT TO DO?

If you want to make your disclaimers count, and have a fighting chance in court if the situation arises, experts have a few suggestions. According to the law firm Reid & Hellyer, “To maximize the chances that such a disclaimer might be found effective, it may be better practice to place it at the beginning, not the end, of an email. However, if one were to do that for all e-mails sent, one might wonder if one really meant for the disclaimer to apply. It might be better practice to use disclaimers sparingly to certain particular emails only, not to every email sent.” But it’s probably best not to count on it to get you out of a jam.

*Disclaimer: this is not intended as a substitute for legal advice. Please consult a lawyer first!

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Why Do Politicians Need to Say 'I Approve This Message' in Their Ads?

What does it mean when a politician approves of a message in a campaign commercial?
What does it mean when a politician approves of a message in a campaign commercial?
bee32/iStock via Getty Images

As election season ramps up, voters will be seeing a lot of campaign advertisements on television. Without exception, these ads will conclude with a disclaimer that the politician being endorsed has sanctioned the spot. Usually, the person will say or be quoted as saying “I approve this message.” It’s clearly a requirement, but why? And how did it get started?

The practice is a relatively new one. In 2002, the Bipartisan Campaign Reform Act was passed, along with the Stand By Your Ad provision. The Act, which was backed by then-senators John McCain and Russell D. Feingold, was intended to further legitimize campaign contributions by banning large corporate donations. Stand By Your Ad mandates that anyone running for federal office stamp “I approve this message” as part of their campaign commercials. The goal was to curb muckraking, where candidates would lob ceaseless insults and accusations at one another. With Stand By Your Ad, lawmakers were hoping political candidates would think twice before engaging in dirty tactics and then attempting to deny any involvement. Call it a self-imposed campaign shaming.

The Federal Election Commission (FEC) is very specific about how that disclaimer should appear. According to the FEC, the written statement must come at the end of the ad, appear for at least four seconds, be readable against a contrasting background, and occupy at least 4 percent of the vertical picture height. The candidate will typically identify themselves and say the message aloud.

If the message was not approved by a candidate, then the spot will typically name the entity that is responsible—a political committee, group, or person. There’s also usually language about who financed the commercial.

So does this “play nice” edict actually work? According to research from the Haas School of Business at the University of California, Berkeley and published in the Journal of Marketing Research in 2018, the answer is: Not really.

Negative campaign ads made up 29 percent of political persuasion spots in 2000, and that number rose to 64 percent in 2012. In the week before the 2016 presidential election, 92 percent of ads were characterized as negative.

One possible reason: By stamping a negative message with “I approve,” candidates might actually be perceived as more credible by voters, as they're showing that they are willing to stand behind what viewers infer to be truthful statements. In a study of 2000 people using both real and fictional ads, researchers found that “I approve this message” didn’t change their perception of positive ads or personal attack ads, but did increase their confidence in politicians using policy-based attack ads.

The appearance of federal regulation, even if there’s no actual regulatory approval over a statement, seems to give messages credibility. So long as a candidate “approves” a message, positive or negative, voters may perceive their subjective statements as the truth.

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