Why do you need disclaimers?

There are several reasons why you might decide to add disclaimers to your outgoing electronic mail. The reasons can be split into two distinct groups: legal and marketing reasons.

1. Legal reasons

If you were in the unfortunate situation as to be sued for the contents of an e-mail, it is not certain whether an email disclaimer will protect you from liability in a court of law (at least not in all countries). However, it will certainly help your case and in some situations might exempt you from liability. More importantly, it may well prevent the actual occurrence of lawsuits against your company, since the mere presence of the statement might deter most persons from seeking legal compensation from your company. Therefore the use of a legal disclaimer is always recommended.

There are certain legal positions that disclaimers can help to protect your company:

Employer's liability:
Although a company is ultimately responsible for the actions of its employees, which includes the content of any electronic mail they send, a disclaimer can decrease their liability. If a company can show that it has correctly instructed its employees not to send libelous, or defamatory statements, this could help in disclaiming responsibility if an employee breaches these rules. A company can demonstrate this by including an e-mail disclaimer to that effect, and by implementing an e-mail policy that clearly warns employees against misuse of e-mail.

Breach of confidentiality:
By including a disclaimer that warns that the content of the e-mail is confidential, you can protect your company against the exposure of confidential information. If the receiver breaches this confidentiality, they could be liable.

Accidental breach of confidentiality:
If an employee were to receive a confidential mail from someone and by accident forward it to the wrong person, the employee, and therefore the company, would be liable. This can easily happen. For instance a wrongly addressed e-mail can be forwarded to a postmaster, who might not be authorised to read the mail. Furthermore, e-mail can easily be intercepted. If you include a statement at the end of your mail that this e-mail is only intended for the addressee, and that if anyone receives the e-mail by mistake they are bound to confidentiality, therfore the disclaimer would protect you.

Transmission of viruses:
If an employee sends or forwards an e-mail that contains a virus, your company can be sued for this. Apart from implementing a good virus checker that blocks viruses entering and leaving the company via e-mail, you can also warn in your disclaimer that the e-mail can possibly contain viruses and that the receiver is responsible for checking and deleting viruses.

Negligent misstatement:
By law, a person is obliged to take care when giving advice that a third party relies on. If an employee were to give professional advice in an e-mail, the company will be liable for the effect of the advice that the recipient or even third party, reasonably relies upon. A suitable disclaimer could protect your company from this kind of liability.

Please note: There is no disclaimer that can protect against actual libelous or defamatory content. The most a disclaimer can accomplish in this respect is to reduce the responsibility of the company, since it can prove that the company has acted responsibly and done everything in its power to stop employees from committing these offenses.

2. Marketing reasons

Apart from legal reasons, a footnote or signature can also be added to serve marketing purposes.

Marketing information:
Disclaimers can be used to add a company address, URL and/or slogan if wished. In some countries, companies are required to state the company's particulars on any written communication especially when the written content is of a legally binding nature. Since e-mail is considered written content, it would be prudent to include this in all electronic mail.

Professionalisim:
By adding disclaimers, your company gives a professional and legally compliant feel. Apart from deterring any possible adversaries from suing, it will convey awareness and professionalism to your customers.