Are email signatures legally meaningful?
November 27, 2007 11:39 AM Subscribe
Do automated email sigs mean anything in court?
It's common for law firms, medical professionals, investment companies, and other organizations to automatically attach an email signature for all their employees' outgoing messages. These signatures frequently include onerous warnings and disclaimers that sound very official and imply all kinds of legal standing. But, what's the real deal?
Have there been many tests of what an automated signature does to alter the legal status of an email's contents in the eyes of the law? In particular, can you oblige "confidentiality" from the recipient of an unsolicited message — one in which (as Judge Wapner used to say) there has been no "meeting of the minds?"
It's common for law firms, medical professionals, investment companies, and other organizations to automatically attach an email signature for all their employees' outgoing messages. These signatures frequently include onerous warnings and disclaimers that sound very official and imply all kinds of legal standing. But, what's the real deal?
Have there been many tests of what an automated signature does to alter the legal status of an email's contents in the eyes of the law? In particular, can you oblige "confidentiality" from the recipient of an unsolicited message — one in which (as Judge Wapner used to say) there has been no "meeting of the minds?"
They aren't legally binding, because the recipient usually hasn't signed any contract with the sender.
Here and here are good examinations of why they are not very meaningful. Here is a website that argues that they are still useful if not legally binding.
posted by burnmp3s at 11:51 AM on November 27, 2007
Here and here are good examinations of why they are not very meaningful. Here is a website that argues that they are still useful if not legally binding.
posted by burnmp3s at 11:51 AM on November 27, 2007
http://www.slate.com/id/2101561/
http://www.goldmark.org/jeff/stupid-disclaimers/
http://attrition.org/security/rant/z/disclaimers.html
posted by rhizome at 11:53 AM on November 27, 2007
http://www.goldmark.org/jeff/stupid-disclaimers/
http://attrition.org/security/rant/z/disclaimers.html
posted by rhizome at 11:53 AM on November 27, 2007
In regards to your question about whether there have been any tests of disclaimers, see this quote from the article I linked to:
"I don't know of any U.S. courts that have heard a claim like this yet, much less a claim based on an e-mail disclaimer where a nondisclosure agreement does not exist," says Finley. "Certainly the e-mail disclosure carries some weight; the question is how much. It's unknown what the courts will do with it."
posted by ND¢ at 11:54 AM on November 27, 2007
"I don't know of any U.S. courts that have heard a claim like this yet, much less a claim based on an e-mail disclaimer where a nondisclosure agreement does not exist," says Finley. "Certainly the e-mail disclosure carries some weight; the question is how much. It's unknown what the courts will do with it."
posted by ND¢ at 11:54 AM on November 27, 2007
It's probably considered a contract of adhesion and if it's reasonable and to be expected it would probably stand up in court (IANAL and emphasis on probably), assuming you didn't immediately send an email back rejecting the provisions it would probably be ok. But I think it's mostly there as a warning to anyone that might accidentally get the email rather than the intended recipient.
posted by whoaali at 11:58 AM on November 27, 2007
posted by whoaali at 11:58 AM on November 27, 2007
Don't know if you've seen this SMTP Disclaimer that invalidates mail with legal sigs sent to this guys mail server by imposing his own conditions on the sender, but it seems relevant to you.
posted by willnot at 12:02 PM on November 27, 2007 [1 favorite]
posted by willnot at 12:02 PM on November 27, 2007 [1 favorite]
Of course they are. Any random sender can impose whatever conditions they want on you, right?
--Unixrat
***THIS REPLY IS CONFIDENTIAL INFORMATION BETWEEN THE WRITER AND THE WRITEE. BY GIVING THIS INFORMATION HEREIN THOU ART OBLIGATED TO PAY ME FIVE DOLLARS (UNITED STATES DOLLARS) WITHIN 15 DAYS NOTWITHSTANDING COMMON CARRIER TRANSPORT TIMES. PAYPAL IS A++++ OK ***
See the problem?
posted by unixrat at 12:07 PM on November 27, 2007
--Unixrat
***THIS REPLY IS CONFIDENTIAL INFORMATION BETWEEN THE WRITER AND THE WRITEE. BY GIVING THIS INFORMATION HEREIN THOU ART OBLIGATED TO PAY ME FIVE DOLLARS (UNITED STATES DOLLARS) WITHIN 15 DAYS NOTWITHSTANDING COMMON CARRIER TRANSPORT TIMES. PAYPAL IS A++++ OK ***
See the problem?
posted by unixrat at 12:07 PM on November 27, 2007
Response by poster: One reason I was highlighting the automated part (and, as ever, IANAL either) is that I always smile when these sigs are also attached to flagrantly non-work-related email messages. (So — what? — I'm now legally obligated not to mention that Sally's surprise party is on Friday at Flinger's?)
Just seems like it'd be a stretch to think you can conjure some additional legal protection from slapping boilerplate onto every single message — without regard to what it says or who it goes to.
posted by merlinmann at 12:13 PM on November 27, 2007
Just seems like it'd be a stretch to think you can conjure some additional legal protection from slapping boilerplate onto every single message — without regard to what it says or who it goes to.
posted by merlinmann at 12:13 PM on November 27, 2007
I always assumed that they were more of a way of saying "Don't share this with people you shouldn't be sharing this with" than anything legally-threatening.
posted by mjgrady at 12:23 PM on November 27, 2007
posted by mjgrady at 12:23 PM on November 27, 2007
READ CAREFULLY. By [accepting this material|accepting this payment|accepting this business-card|viewing this t-shirt|reading this sticker/mefi post] you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
via http://smallprint.netzoo.net/reag/
posted by remthewanderer at 12:42 PM on November 27, 2007 [1 favorite]
via http://smallprint.netzoo.net/reag/
posted by remthewanderer at 12:42 PM on November 27, 2007 [1 favorite]
I could see an automated message being useful to remind people of pre-existing restrictions that might be there. Something like "remember you have an NDA, you don't want to get sued do ya?" would probably be useful but without any sort of legal power.
posted by cschneid at 12:47 PM on November 27, 2007
posted by cschneid at 12:47 PM on November 27, 2007
In particular, can you oblige "confidentiality" from the recipient of an unsolicited message
Consider that even if the confidentiality of the jist of the message isn't able to be enforced, it's still possible to violate copyright by quoting a message verbatim. Of course, if something is really confidential, this is not a significant help.
posted by wackybrit at 12:57 PM on November 27, 2007
Consider that even if the confidentiality of the jist of the message isn't able to be enforced, it's still possible to violate copyright by quoting a message verbatim. Of course, if something is really confidential, this is not a significant help.
posted by wackybrit at 12:57 PM on November 27, 2007
I've always wondered how these disclaimers come about. If it were an odd company or law firm here and there that used them, one could just laugh at them. But, it seems that this is really widespread, despite the questionable usefulness (let alone, legal weight) of such disclaimers. So here's a piggyback question for any CEO's and law firm partners out there, does someone pull you to the side at some point and say: "Thou shalt attach ridiculous mumbo jumbo to all emails, or be convicted of violating code 420 of the handbook of corporate culture"?
posted by epimorph at 12:57 PM on November 27, 2007
posted by epimorph at 12:57 PM on November 27, 2007
My favorite (I forget where I cadged it from):
Notice: You may purchase the right to send me unsolicited commercial e-mail ("spam") for the fee of $500 (USD) per message. Billing can be either pre-arranged or can occur automatically after the reception of a spam. Failure to pay will be treated in accordance to US Code, title 47, sec. 227, which allows unsolicited e-mail to be punishable by action to recover actual monetary loss or $500, whichever is greater, per violation. Sending spam to me without payment constitutes unauthorized access to my mail daemon, which is in violation of federal law.
posted by JaredSeth at 1:09 PM on November 27, 2007 [1 favorite]
Notice: You may purchase the right to send me unsolicited commercial e-mail ("spam") for the fee of $500 (USD) per message. Billing can be either pre-arranged or can occur automatically after the reception of a spam. Failure to pay will be treated in accordance to US Code, title 47, sec. 227, which allows unsolicited e-mail to be punishable by action to recover actual monetary loss or $500, whichever is greater, per violation. Sending spam to me without payment constitutes unauthorized access to my mail daemon, which is in violation of federal law.
posted by JaredSeth at 1:09 PM on November 27, 2007 [1 favorite]
So here's a piggyback question for any CEO's and law firm partners out there, does someone pull you to the side at some point and say: "Thou shalt attach ridiculous mumbo jumbo to all emails, or be convicted of violating code 420 of the handbook of corporate culture"?
A good friend of mine is CIO for a very small financial house and these boilerplates come attached to his messages. When I pointed out that they mean nothing, he acknowledged it, but said that they do it on the advice of their lawyers who play CYA with everything under the sun, even if everyone realizes that it's complete crap.
This is because my brother-in-law is an ambulance chasing lawyer weasel who will sue anyone for anything. This is exactly the sort of nincompoopery that he would latch onto and drag out into a $250,000 settlement. He is scum of the highest order and if he wasn't my wife's brother I would spit on him.
In summary, they do this because business law is made by leeches and scumbags in $5000 suits.
posted by unixrat at 1:59 PM on November 27, 2007 [1 favorite]
A good friend of mine is CIO for a very small financial house and these boilerplates come attached to his messages. When I pointed out that they mean nothing, he acknowledged it, but said that they do it on the advice of their lawyers who play CYA with everything under the sun, even if everyone realizes that it's complete crap.
This is because my brother-in-law is an ambulance chasing lawyer weasel who will sue anyone for anything. This is exactly the sort of nincompoopery that he would latch onto and drag out into a $250,000 settlement. He is scum of the highest order and if he wasn't my wife's brother I would spit on him.
In summary, they do this because business law is made by leeches and scumbags in $5000 suits.
posted by unixrat at 1:59 PM on November 27, 2007 [1 favorite]
This is exactly the sort of nincompoopery that he would latch onto and drag out into a $250,000 settlement.
He must be a hell of a negotiator.
I think usage of these things have mostly propagated because people like to believe in weird little talismans that will protect them from litigation and brain tumors from cell phones and whatever else could potentially be sold via infomercial. Also, many people can't tell the difference between a notice that might be useful ("If I accidentally sent this to you, could you let me know?" or "I am licensed in jurisdiction X."), or required by law or ethical rules, and those that are utterly inane.
Merlin, it doesn't seem likely that there's been much in the way of jurisprudence on the validity of these sorts of sigs. There may be some case law stemming from malpractice suits where confidential or privileged information was sent in error that addresses the issue tangentially. Ethics opinions for both legal and medical practitioners might also have some information that's on point for your question.
Probably the best thing to do is look at some of the cases regarding assent to the terms of software licenses and get a feel for the reasoning at play in them. There are a lot of extraneous issues, but probably a great deal can be extracted from them. In that vein, Jones Day has a white paper on drafting software licenses that addresses a lot of the agreement issues that are analogous to those that would arise if somebody tried to enforce a disclaimer. Lots of case law citations, too, if you wanted to go digging.
posted by averyoldworld at 3:41 PM on November 27, 2007
He must be a hell of a negotiator.
I think usage of these things have mostly propagated because people like to believe in weird little talismans that will protect them from litigation and brain tumors from cell phones and whatever else could potentially be sold via infomercial. Also, many people can't tell the difference between a notice that might be useful ("If I accidentally sent this to you, could you let me know?" or "I am licensed in jurisdiction X."), or required by law or ethical rules, and those that are utterly inane.
Merlin, it doesn't seem likely that there's been much in the way of jurisprudence on the validity of these sorts of sigs. There may be some case law stemming from malpractice suits where confidential or privileged information was sent in error that addresses the issue tangentially. Ethics opinions for both legal and medical practitioners might also have some information that's on point for your question.
Probably the best thing to do is look at some of the cases regarding assent to the terms of software licenses and get a feel for the reasoning at play in them. There are a lot of extraneous issues, but probably a great deal can be extracted from them. In that vein, Jones Day has a white paper on drafting software licenses that addresses a lot of the agreement issues that are analogous to those that would arise if somebody tried to enforce a disclaimer. Lots of case law citations, too, if you wanted to go digging.
posted by averyoldworld at 3:41 PM on November 27, 2007
Email signatures intended to impose confidentiality or some other duty on the recipient probably won't work.
However, an email signature intended merely to assure that the recipient knows some fact (e.g. We do not have an attorney-client relationship, and even if we did, this email does not constitute professional advice) are much more likely to be effective. Think about it this way: to sue the lawyer for giving you bad advice in the email, you have to convince the court or jury that you thought he was your lawyer and the email contained legal advice meant for you. If the email specifically said that he wasn't and it didn't, it gets just that much harder to make out a claim.
posted by "Tex" Connor and the Wily Roundup Boys at 7:13 PM on November 27, 2007
However, an email signature intended merely to assure that the recipient knows some fact (e.g. We do not have an attorney-client relationship, and even if we did, this email does not constitute professional advice) are much more likely to be effective. Think about it this way: to sue the lawyer for giving you bad advice in the email, you have to convince the court or jury that you thought he was your lawyer and the email contained legal advice meant for you. If the email specifically said that he wasn't and it didn't, it gets just that much harder to make out a claim.
posted by "Tex" Connor and the Wily Roundup Boys at 7:13 PM on November 27, 2007
It is important, I think, to distinguish between a disclaimer being a legally enforceable contract document and a disclaimer having a desired effect in a subsequent legal proceeding.
This is absolutely the crux. Legitimate, intelligent usage of disclaimer sigs are intended to address the latter concern, but so many people think that they operate as the former. It's like security theater - it makes people feel safe. It sounds like the OP was interested in the view of disclaimers as creating some sort of enforceable contract or imposing a duty. I think it's very unlikely that they do, but the shrinkwrap cases would be a starting point if you were going to argue to the contrary.
Even people who are trying to use disclaimers properly in the limited cases where they make sense often botch it. A well-crafted notice used indiscriminately is probably counter-productive (mandatory signatures claiming corporate ownership of an email might be problematic when arguing against the application of respondeat superior doctrine in a case revolving around such an email).
Disputes over whether documents are or are not privileged occur all the time, and a signature block with a well-crafted confidentiality statement can make a big difference.
As somebody who's done a fair share of discovery work, this has simply not been my experience. During a first-line review, it's not uncommon for the reviewers to use a "dummy priv" standard: mark it privileged first, and let the priv review sort it out later. Even in this context, virtually no weight is given to the universally-applied signature blocks.
posted by averyoldworld at 9:48 AM on November 28, 2007
This is absolutely the crux. Legitimate, intelligent usage of disclaimer sigs are intended to address the latter concern, but so many people think that they operate as the former. It's like security theater - it makes people feel safe. It sounds like the OP was interested in the view of disclaimers as creating some sort of enforceable contract or imposing a duty. I think it's very unlikely that they do, but the shrinkwrap cases would be a starting point if you were going to argue to the contrary.
Even people who are trying to use disclaimers properly in the limited cases where they make sense often botch it. A well-crafted notice used indiscriminately is probably counter-productive (mandatory signatures claiming corporate ownership of an email might be problematic when arguing against the application of respondeat superior doctrine in a case revolving around such an email).
Disputes over whether documents are or are not privileged occur all the time, and a signature block with a well-crafted confidentiality statement can make a big difference.
As somebody who's done a fair share of discovery work, this has simply not been my experience. During a first-line review, it's not uncommon for the reviewers to use a "dummy priv" standard: mark it privileged first, and let the priv review sort it out later. Even in this context, virtually no weight is given to the universally-applied signature blocks.
posted by averyoldworld at 9:48 AM on November 28, 2007
Just skimming, The World Famous looks correct.
The purpose of the disclaimer has nothing really to do about the recipient or imposing obligations on them.
The purpose of the disclaimer is an overly-cautious (belts and suspenders) thing used to try to keep messages sent by attorneys under an umbrella of privilege so that they can't be used in a lawsuit against their clients.
Privileges have to be maintained or they are waived. If the messages contain the "not intended recipient please call" stuff, then that language is trying to get coverage under the "snap-back" provision of privilege law which says that inadvertently disclosed privileged information can still be privileged if the party requests it to be returned.
Privilege law in this context is a rule of evidence. So the point of all of this is that it is an attempt by attorneys to try to maintain some ability to keep emails out of evidence if they need to do so.
There's a really good law review article on this somewhere... but I've slept since I have read it so I can't remember the journal it is in.
posted by dios at 7:50 AM on November 29, 2007
The purpose of the disclaimer has nothing really to do about the recipient or imposing obligations on them.
The purpose of the disclaimer is an overly-cautious (belts and suspenders) thing used to try to keep messages sent by attorneys under an umbrella of privilege so that they can't be used in a lawsuit against their clients.
Privileges have to be maintained or they are waived. If the messages contain the "not intended recipient please call" stuff, then that language is trying to get coverage under the "snap-back" provision of privilege law which says that inadvertently disclosed privileged information can still be privileged if the party requests it to be returned.
Privilege law in this context is a rule of evidence. So the point of all of this is that it is an attempt by attorneys to try to maintain some ability to keep emails out of evidence if they need to do so.
There's a really good law review article on this somewhere... but I've slept since I have read it so I can't remember the journal it is in.
posted by dios at 7:50 AM on November 29, 2007
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posted by winston at 11:48 AM on November 27, 2007