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Email disclaimers

Apr
19
 

Hello everyone! Do any of you ever read email disclaimers? You know, “This email may contain privileged and confidential information…” set in size-8 font in the footer of the message? Probably not.  Most people don’t. Some people even hate them pretty vehemently. Yet these dense paragraphs of legalese persist – why?

From my research, it’s a solution that worked well for misdirected or intercepted faxes, because the disclaimer appeared on the cover sheet and therefore warned before the message was read that only the “intended recipient” should read it.

When applied to emails, however, and especially the footer of the email, a disclaimer does not have the same effect. Instead, it makes email threads unnecessarily long, wastes paper when emails are printed, and furthermore has (probably) almost no legal weight when applied to every single email sent. And, no one reads it anyway. So what’s the point?

The sole arguments that seem to be keeping disclaimers on emails are “better safe than sorry,” and “everyone else is doing it.” No one wants to be that one person without a disclaimer, because what if…? A disclaimer is at least something to show that you tried to protect your client’s confidentiality.

These seem, at least to me, like pretty flimsy reasons to keep disclaiming everything you send. Still, having that modicum of protection is comfortable. So where is the middle ground?

With a bit of research, I found a few simple adjustments you can make to reduce the headache of email disclaimers while keeping with the original intent.

Think before you send.  It sounds elementary or even insulting (sorry about that), but some of the best advice I read was simply to pause before clicking “send.” Double-check that you’re sending to the correct address(es), and that the correct information and documents are enclosed (if you use Gmail, add the “Undo Send” feature in Labs. You only get a few seconds to take it back, but that might be all you need). If you’ve BCC’d (blind carbon copied) anyone, make sure they know that so they don’t accidentally click “Reply All” without any inkling of who’s on the other end. The point is, a disclaimer is not a substitute for thinking.

Selectively apply disclaimers as a canned response. It’s just a fact that every email you send does not contain sensitive information. Some of them contain lunch plans, vacation photos, or maybe YouTube cat videos. These emails have no need of a disclaimer; it should only be applied to messages which actually contain privileged or confidential information.

This sounds like a pain, you might be thinking. What should I do – type a new disclaimer every time I need it? Copy and paste the disclaimer into every confidential email? Not so fast! This requires only a simple switch: instead of putting the disclaimer in your signature, make it a canned response. Many email programs have the ability to save blocks of text which the user would otherwise have to type frequently. These blocks are retrievable from a drop-down menu, and presto! Email: disclaimed.

To create a canned response in Gmail, for example, go to the “Settings” tab (under the little gear-shaped thing on the right-hand side) and click “Labs.” There you can search for “Canned Responses” and enable it. Save your changes, then type or paste your desired disclaimer into a new email, click the down arrow in the bottom right-hand corner, go to “canned responses” and click “New canned response.” Give it a name (maybe, “Disclaimer”) and save it. Next time you want to use it, just go back to the same canned responses menu, click the name of what you want to insert, and it’ll pop right in there.

canned response gmail

If you can’t tell, I’m a Gmail user, but canned responses (also sometimes called templates) are available on many other platforms (such as Outlook) as well.

Put the disclaimer in a more sensible location. For communications that actually are confidential – those in which you actually want the recipient to read the disclaimer – put it in a place where that is likely to happen. For example, at the top of the email or within the body of the text. It may look awkward compared with what you’re used to seeing, but the disclaimer is more likely to be read and heeded.

Alternately, a subject line such as “Confidential – do not forward” is more likely to accomplish what you want it to than is a footnote to the message. This is more analogous to what the disclaimers on the cover pages of faxes achieved than is the current practice.

Keep it short and sweet. However and whenever you end up using a disclaimer, stay away from the 2-paragraph, size-8 font format. If it’s tiny, boring, and incomprehensible, no one will read it. Write in plain language and keep it to a sentence or two. Roman numerals are not needed. Put the thesaurus away and just say what you mean simply and concisely. For example:

“I am a lawyer, but I am not your lawyer (unless you have been in my office and signed a contract). This communication is not intended as legal advice, and no attorney client relationship results. Please consult your own attorney for legal advice.”

Or, if you really must:

The information contained in this email is CONFIDENTIAL. If you have received this message in error or without the express direction of the original author, please notify the sender and delete this email immediately.

As far as I can tell, this kind of disclaimer doesn’t really do anything. But at least it is short, unlike this monstrosity.

Consider alternatives to email, or encrypt the message. If your message really is confidential and you have access to encryption software, use it. If you don’t, consider shipping the documents or simply calling the recipient. You don’t have to use email, after all, but you do have to take reasonable steps to protect your client’s data. If you don’t think that email will cut it, don’t use it.

Do you use an email disclaimer? What does it say? Tell us in the comments!
Liz