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[Disclaimers protect companies against legal risks involving email. But do the courts recognise them?]

   Anubha Charan

"Disclaimer: This document should be read only by those persons to whom it is addressed. If you have received this message, it was obviously addressed to you and therefore you can read it, even if we did not mean to send it to you. However, if the contents of this email make no sense whatsoever then you probably were not the intended recipient, or you are a mindless cretin; either way, you should immediately delete yourself and destroy your computer!"

A parody it may be, but one that definitely makes a point about the email disclaimers that seem to have taken over the corporate world in recent times. They find form as statements appended to emails, warning receivers that the messages do not constitute a formal agreement or contract, views expressed are not necessarily those of the firm concerned, messages are intended only for the receivers, text may in commercial confidence, etc.

All to ensure a company's immunity against commercial or legal risks that may arise because of the correspondence.

A firm may decide to add disclaimers to its emails for many reasons. Primary among these is the law of vicarious liability that makes a company liable for the acts of its employees. Recent changes in the Indian Evidence Act, 1872 and the introduction of the Information Technology Act, 2000 have made email admissible as evidence in a court of law. Even informal or hastily expressed messages might well create a formal contract or agreement, leading to a situation where even the most innocuous of emails may mean big trouble for a firm.

If, for example, an employee sends or forwards an email containing a virus, the firm can be sued to the tune of Rs. 2,00,000 and its managers and directors sent to prison for three years. To counter this, many firms are adding the following disclaimer: "Computer viruses can be transmitted by email. The recipient should check this email and any attachments for the presence of viruses. (The company) accepts no liability for damage caused by any virus transmitted in this email." This not only warns the addressee, but also tries to place the risk and responsibility of checking on the receiver.

Similarly, email can be used to form binding contracts if the individuals have actual or apparent authority to do so. An attempt may, therefore, be made to limit the apparent authority of individuals by a disclaimer like this: "No employee or agent is authorised to conclude any binding agreement on behalf of (the company) with another party by email without express written confirmation by (a Director of the company)."

A company is ultimately responsible for the action of its employees, including the content of any emails they send. Disclaimers can, however, mitigate the responsibility by demonstrating that the company took "due care" to warn the receiver, has disassociated itself from the correspondence and has instructed its employees not to send libellous, discriminatory or defamatory statements.

The most common disclaimer is the one warning readers that the email is confidential, and "if you have received it in error, please delete it from your system, do not use or disclose the information in any way, and please notify me immediately." In doing so, companies hope to protect themselves against being sued for breach of privacy or confidentiality from emails that go astray, placing the responsibility on the receiver.

The question is, will these disclaimers actually hold up in court?

Most advocates feel that a disclaimer can only create a false sense of security, and have only dubious legal value. The most it can hope to achieve is notify recipients that the contents are confidential; it cannot impose any obligation on them to act in a certain way. Courts usually attach more weight to the substantive content of the communication and circumstances in which it is made than to the disclaimer. It is also argued that as email can be easily encrypted, or digitally signed, using a disclaimer is meaningless because "due care" has obviously not been taken.

In some cases, the disclaimer is far longer than the text of the email itself - one from a London law firm clocking in at 1,600 characters! Lawyers feel that the blanket use of such lengthy disclaimers on all email renders them nearly invisible and could constitute 'over warning', again trivialising their legal weight. In a worst-case scenario, the practise may also invite people, and the law, to assume that messages without disclaimers are official policy or should not be treated confidentially.

The most bizarre disclaimers are those that appear at the end of trivial email messages, like a forwarded joke, or even a love letter. They also appear, at times, in 'confidential' messages sent to thousands of people on mailing lists.

Advocate Anand Gupta says he would advise clients to add a disclaimer only when it really matters: "Otherwise, all you are doing is telling people that your disclaimers are to be ignored at all times. You can seldom hurt yourself by including some kind of disclaimer, but you have to be careful not to depend on them to solve all your legal problems."

Thus, a disclaimer may not be able to completely absolve you of liability in a court of law if you were unlucky enough to be sued for the contents of an email. Used cautiously, however, it may add some weight to the warning it conveys, and can provide a useful argument in your defence.

If nothing else, by its mere presence, it may well prevent someone from dragging you to the court in the first place!

Additional Resources
 -- Email Disclaimers Samples and Software
 -- Actual Email Disclaimers in Use By Various Corporates
 -- Parodies of Stupid Email Disclaimers
 -- Fun Disclaimers
 -- Essentials of A Reasonable Disclaimer

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