EMAIL CONFIDENTIALITY/DISCLAIMERS – use, or don’t use?

July 2, 2018  |  Carole Clark Isakson

We see them every day, that notice at the bottom of an email stating something to the effect that the contents of the email are confidential and that if you have received it in error you should alert the sender immediately and not use the information you have received.
The use of confidentiality/disclaimer footers is so common that most of us do not even notice them anymore. They appear below the sender’s signature block and may be emphasized by colored text or capital letters. But regardless of appearance I think we can all agree that few of us actually read them. And even when we do? From a practical standpoint we already read the contents of the email before we get to the disclaimer. One wonders then, is there any point to it? A misdirected email has already been read by the wrong person by the time that person gets to the bottom of the email.
So, should your business use a confidentiality footer or not? Does the use of a footer actually protect your information if you send an email to the wrong person?
Understandably there are few court cases that address this specific issue, but the themes in the few cases that exist are consistent. A court in Georgia in 2011, in finding that a company’s customer list was not a trade secret, noted that the list had been sent in an email that did not contain a confidentiality disclaimer. While this would seem to support the view that using a disclaimer has some sort of legal effect, in this case the lack of a disclaimer was just one of several factors noted by the court in finding that the customer list was not a trade secret. Lack of password protection on the emails, lack of use of a secure network and other factors were also noted. It seems clear that in this case, the presence of an email confidentiality disclaimer would not have changed the outcome, since the company had failed in so many other ways to protect its customer list.
In 2013 a court in Texas considered how much impact an email confidentiality footer might have when it considered whether or not a former employee of a company had stolen confidential information. In that case the court easily found that the confidentiality statement was just a generic warning. In other words, the presence of the footer had no impact on the case.
While it seems clear that the standard confidentiality footer will not itself protect the information in an email that is sent to the wrong person, we do recommend that a footer be used as follows and in the following circumstances:
1. Use the footer when sending confidential information, but make sure that the footer actually becomes a header…in other words, the first thing at the top of an email that contains anything confidential should be the confidentiality warning and disclaimer. If it appears at the bottom of the email the recipient need only argue that he or she had already read the email by the time the disclaimer appeared.
2. Continue to include the footer on all of your emails as it certainly will not hurt, but be aware that you cannot rely on it in protecting confidential information.
When it comes to confidential information, the first question should really be whether you want to include it in an email at all.
Further questions on this or related topics may be addressed to Carole Clark Isakson.