Disclaimered To Death

Increasingly, it’s become a fashion to end emails with a ‘disclaimer’ that runs something like this:

This e-mail may contain confidential and/or privileged information. If you are not the intended recipient (or have received this e-mail in error) please notify the sender immediately and destroy this e-mail. Any unauthorised copying, disclosure or distribution of the material in this e-mail is strictly forbidden.

I’ve no doubt that the email disclaimer is the product of some fertile legal brain somewhere. Unfortunately, that brain isn’t accompanied by intelligence. Lawyers like this kind of thing. It makes them feel important. It shows that they have something of vital importance to share or, more accurately, that everything they say is of vital importance, because they’re saying it and, see, they’ve even got a disclaimer tucked in at the bottom. It also frightens a good many people. Lawyers, more than any other tribe, feed on fear.

But look at any disclaimer carefully and it’s obvious that people who stick in this kind of thing haven’t a clue. They don’t even write well: their information is always ‘ confidential and/or privileged’. But privileged information is, by definition, confidential. That’s what ‘privileged information’ means – it is private information between, say, lawyer and client which no one else, not even a judge, is entitled to see. The information in an email is either confidential (in which case it may or may not be privileged) or it is privileged (in which case it is automatically confidential). It’s neater and more precise to say ‘confidential or privileged’. The Disclaimer Devotees need to spend some time at Plain Language.

In any case, you shouldn’t be sending sensitive material by open email to begin with. At the very least, you should encrypt your mail. Or else don’t send it. There’s absolutely no security in an open, unencrypted email and no amount of disclaimer-chanting is going to change that. It’s like sending out your credit card details in an open, unsealed envelope with a sticky note saying “ Don’t use this unless you are the one to whom I sent it.”

The disclaimer-ers (as opposed to the disclaimerees) insist on calling themselves “the sender” when they ask you to return the mail. Obviously, these people didn’t make it into The Matrix movies, or we’d have seen The Architect, The Keymaker, The Merovingian, The Oracle, The One and The Sender. There’s no such thing as returning email either. This isn’t like a physical envelope or delivery that can be returned to sender. An email has to be sent back; it can’t be returned. That means that, usually, the Unintended Recipient has yet another copy of The Disclaimed Thing in his or her Sent Items folder. Or perhaps The Sender didn’t get that. In any case, the demand is pointless since there’s no means of knowing whether the email has been deleted or of policing what’s been done with it.

The most inconsiderate thing about these Disclaimer Brigade Homilies is the amount of space they take up. For many reasons, people still print out emails. Disclaimers force the use of an extra sheet of paper just for that one needless, meaningless line or paragraph.

I doubt that such a disclaimer has any kind of legal effect or sanctity. Given that the medium is unsafe, it is the sender’s responsibility, as the creator of the email, to ensure that it transmitted securely. Secondly, if it has gone astray, finding the person who got it is almost impossible so there’s no method of enforcing the disclaimer. Unless the email contains information that is very, very unique, there’s also no way of establishing that the person who got that information got it from – and only from – the disclaimerer.

With the amount of email flying around, it’s very unlikely anyone would be interested in your junk anyhow; they’re too busy battling their own spam-demons.

Bottom line: disclaimers are for losers.