Are Email Disclaimers Meaningless?

Illustration for article titled Are Email Disclaimers Meaningless?

Welcome back to Ask a Lawyer, where I, a lawyer, respond to your questions. Got a vexing legal issue? Send it over, or drop it in the comments below. Today’s query:

How much legal weight does that disclaimer at the end of an email from my accountant/insurance advisor really carry? If I were to receive something in error and do something unsavory, but not necessarily illegal in and of itself, with it can they really hold me responsible or get me in trouble?


How much legal weight? None, practically speaking.

I’ve mentioned it before, but I’ll say it again: The reason that this answer isn’t phrased as an absolute is because it shouldn’t be. Like the world around you, the law isn’t black and white, nor is it devoid of nuance and critical thinking. We’ll need both to flesh out an explanation to the answer above.

Email disclaimers typically try to cover confidentiality and a lot of other things. Depending on the type of business, they may include a kitchen sink worth of other words, too. The Wall Street Journal reported that one investment bank’s email disclaimer contained 2,578 words, clearly the result of the ultimate linguistic lawyergasm. That’s about 150 more words than are in the Declaration of Independence, the Bill of Rights, the Gettysburg address, and the lyrics of “Hold On” by Wilson Phillips, combined.

That said, we’ll need to take a closer look at what we’re calling a “disclaimer.” Remember back in September when we talked about whether a garage is liable for your car? The key takeaway there was that it’s important to surface the existence of a one-way contract, which is the same type of contract that you encounter daily - these are the contracts that are found on signs, the backs of receipts, printed on tickets. It’s called an adhesion contract. And that’s exactly what these disclaimers actually are. Someone is trying to force a little tiny adhesion contract on you at the tail end of an email. The question is: Can they?

The answer is no. You can’t force confidentiality obligations onto someone in that manner, especially after they’ve already read the material that was sent to them. I reached out to Matthew Miller, Chair of the Business Litigation Group at San Francisco-based law firm Carroll, Burdick & McDonough, who explained further:

In the attorney and client world, email disclaimers achieve their highest form of meaningless irony—sent by counsel who know quite well from their Contracts 101 course that they cannot unilaterally bind email recipients to terms not covered by other pre-existing bilateral agreements, most attorney-sent disclaimers nevertheless direct a litany of confidences, thou-shalt-nots, and affirmative actions (delete if in error, notify sender, burn in an ashtray, never mention that I horribly demeaned you in an inadvertent reply-to-all).


However, things get vague and fuzzy in the exact way that make lawyers so infuriating to most people. I don’t think an email disclaimer obligates you to confidentiality. But—and that’s a big Sir Mix a Lot sized “but”—if someone makes a mistake and gives you something of value that you know doesn’t belong to you, you usually can’t just ...keep it. It’s based on a concept called unjust enrichment, the same reason that if your bank accidentally pumps your cash-starved bank account with $5 million, it’s not magically your $5 million.

Let’s use an example. Imagine you’re walking down the street when a man shoves into your hands his business card, a solid gold actual size replica of Paul Giamatti’s head, and several coupons for free lunch at Sizzler. “Sarah, these are for you,” he whispers. He quickly runs away, shouting over his shoulder, “Don’t tell anyone this happened. If you were not the intended recipient of those items, please throw them away immediately, contact me, and literally forget this ever happened! Don’t forget—it’s a seeeeeeeecret!” Also, your name is not Sarah.


What is the first thing you do? Obviously, the answer is to dive head first into some Endless Salad Bar and cheese toast (and don’t forget to tip). Once you’re sated, what do you do with Paul Giamatti’s head? Can you tell anyone about it? Of course you can—the man’s insistence that it’s a secret is meaningless. Can you sell Paul Giamatti’s head? Well, you could—there’s no one physically stopping you. But under the theory of unjust enrichment, when someone makes a unilateral mistake—meaning that the man’s mistake was not your doing—and someone ends up with a thing of value as a result, the recipient is liable if the thing of value (or its equivalent) isn’t returned. So call the man, reimburse him for your one-person Sizzler orgy, and ever so gently hand over Paul Giamatti’s glorious head.

And it’s not just about enrichment through a mistake. Back to email with a disclaimer. What if someone accidentally sends you their username and password to their bank account? Do you have to keep it secret? No. Can you use their username and password? No. That’s committing criminal and civil wrongs.


I’m having a hard time thinking of things you could do in a mistakenly received email that are unsavory (the word from your question) but not illegal. For example, if you receive an email that someone named Jessica will be waiting outside of the JetBlue baggage claim at 3 p.m., do you envision just showing up and standing behind Jessica, your face inches from the back of her head, taking in the citrusy notes left behind by her shampoo? That would be unsavory and probably not illegal. Creepy, too. Highly unadvisable. Unsavory? Yes.

So, no, there’s not really legal weight to these things. But receiving something by mistake doesn’t give you full license to act with wild abandonment and unsavoriness. Unless it’s plans for a fully functioning time travel machine. In that case, go forth and change history.


Ask a Lawyer is a practicing lawyer with over 15 years of broad legal experience. He is part of the team at Unwonk Podcast and can be found on Twitter. Keep in mind that this is general information, and not formal legal advice or legal representation; if you need any of that, you should get it from a lawyer in real life, not an internet column. A legal problem is serious and fact-specific, and you should treat it accordingly. But you have common sense and already knew that.


Art by Jim Cooke.

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