Earlier this year, we were approached by a client who inquired whether they really needed to put a disclaimer on electronic communications, both facsimile transmissions and emails. Because of attorney-client and other privileges applicable to attorneys, as well as a more recent IRS regulation, as a law firm we have always used such disclaimers, and could not recall ever receiving an electronic message from another law firm without a similar notice. But, until that question was presented to us, we had never researched the issue of whether such disclaimers and notices were legally required to be affixed to electronic communications.
Some years ago, you may have recalled seeing a very humorous email disclaimer circulating like wildfire across the internet, and to this day, we have never heard of, much less seen, a more tongue-in-cheek disclaimer, which read as follows:
IMPORTANT: This email is intended for the use of the individual addressee(s) named above and may contain information that is confidential, privileged or unsuitable for overly sensitive persons with low self-esteem, no sense of humor or irrational religious beliefs. If you are not the intended recipient, any dissemination, distribution or copying of this email is not authorized (either explicitly or implicitly) and constitutes an irritating social faux pas.
Unless the word absquatulation has been used in its correct context somewhere other than in this warning, it does not have any legal or no grammatical use and may be ignored. No animals were harmed in the transmission of this email, although the kelpie next door is living on borrowed time, let me tell you. Those of you with an overwhelming fear of the unknown will be gratified to learn that there is no hidden message revealed by reading this warning backwards, so just ignore that Alert Notice from Microsoft.
However, by pouring a complete circle of salt around yourself and your computer, you can ensure that no harm befalls you and your pets. If you have received this email in error, please add some nutmeg and egg whites, whisk and place in a warm oven for 40 minutes.
But back to the question: Is there a legal requirement to include a disclaimer or notice with your electronic transmissions? The short answer is “No.” However, for a variety of reasons, you, and especially your company, may want to include a proper disclaimer or notice.
While there is no specific statutory requirement that an electronic message contain a disclaimer notifying unintended recipients that the information is protected, there are reasons why doing so is good practice.
1. Intentional Breach of Confidentiality. By including a disclaimer warning that the content thereof is confidential, a company may be able to protect against the exposure of confidential information. Furthermore, a receiver receiving such confidential information, knowing that it is confidential, could be liable for forwarding that confidential information. In fact, under the Uniform Trade Secrets Act (“UTSA”) as adopted in Missouri, a trade secret is defined as “information, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique or process that:
a.) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and
b.) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy
The definition of “trade secret” under the Illinois UTSA is more expansive, as it includes drawings, financial data, and lists of actual or potential customers or suppliers. Furthermore, unlike the Missouri counterpart, the modifier that the economic value to be derived be “independent” is absent. Moreover, the Illinois UTSA does not include the limitation on the definition of a trade secret that it not be “readily ascertainable by proper means by other persons.”
Section (b) is the critical section for the purpose of electronic disclaimers and notices. Courts have ruled that a lack of effort to protect information deprives that information from protection under UTSA, especially where the protection is readily and easily accomplished. Disclosure of confidential information where the owner failed to take reasonable measures to preserve secrecy does not constitute misappropriation. A reasonable measure to protect information in the case of electronic communications could be as simple as a notice that the information contained therein is protected.
Furthermore, the Federal Electronic Communication Privacy Act (the “Act”) makes it a criminal offense, among other things, to intentionally intercept or knowingly distribute an intercepted electronic communication, including email. A disclaimer is not required to enable its protections as all electronic communication is covered by its provisions. However, a disclaimer does provide some benefit in that it will put persons on notice that the email is intended for a specific named recipient and therefore if it is being disseminated by someone other than the named recipient, the communication could have been illegally intercepted and therefore the further dissemination may be in violation of the Act.
2. Accidental Breach of Confidentiality. For the same reasons as in the case of intentional breach of confidentiality, by clearly notifying recipients of the confidential nature of the content, further dissemination may be thwarted. While disclaimers are commonplace and likely not read, the absence thereof may also perhaps be read as being a sign that the content thereof is not confidential.
3. Viruses. A company or other sender may be liable for transmitting an email virus to another person. By including in your disclaimer that the email, and attachments, may possibly contain viruses and warning that the receiver is responsible for checking for viruses (or stating exactly the opposite if content in attachments have been checked for viruses) may also be additional protection for the sender.
4. Unwittingly Entering Into Contracts. Written communications, even if not denominated a “Contract” or an “Agreement” may nonetheless form a contract if the legal elements of a contract are sufficiently addressed, whether in one or more communications. By including in the email disclaimer a provision that contracts may only be entered into by certain company employees, or of a procedure for contracts to be entered into, a company can prevent this potential occurrence from happening.
5. Negligent Misstatement. A company may be held liable for providing misinformation which is justifiably relied upon by the recipient. Although such situations would likely be rare, they could nonetheless arise. A disclaimer on content would minimize, if not eliminate, this potential, albeit remote, liability.
6. Employer’s Vicarious Liability. A company may be held liable for the content of an employee’s email, including those emails which may contain libelous or defamatory statements. While a company’s electronic communications policy should include an admonition to not send such emails, a statement in the disclaimer stating that the opinions are those of the employee only and not of the company, may go to divert liability from the employer to the employee.
While we recognize that most companies do not wish to address against all possibilities outlined above, we believe that the issue of most critical importance to most companies, if not also individuals, is to protect a company’s confidential information. Courts have ruled that a lack of effort to protect information deprives confidential information from protection under the Uniform Trade Secrets Act, especially where protection is readily and easily accomplished.