Email Disclaimers

If you send commercial emails, including an Email Disclaimer in the body of the email can offer liability protection and potentially help with legal compliance.

While there's some dispute over how effective some Email Disclaimers actually are when it comes to legal protection, they're still commonly used in most commercial email communications.

We'll break down what Email Disclaimers are, what laws affect them and will provide some examples of different types of disclaimers that your email communications may benefit from.

What are Email Disclaimers?

An Email Disclaimer is a notice or warning that's included in the body of an email. It's usually found at the bottom of the email right after a signature, although it's becoming more common for these to appear at the top of an email or right before the signature.

Email Disclaimers typically cover things like confidentiality of information, copyright protection, contract formation, general civil liability, and information security.

Laws That Affect Email Disclaimers

While email disclaimers are not legally required in many jurisdictions, there are laws that encourage their use. These laws fall within two categories: Information security and spam control.

Information security

There are several laws around the world that address privacy and information security. Since companies can be held liable for breaches involving customer data, they often use email disclaimers to support confidentiality or waive liability in case emails are intercepted or infected by a virus.

These are the current laws encouraging email disclaimers.y

The EU and its Member States

EU Directive 2003/58/EC classifies emails as a part of business operations. Any electronic correspondence transacting within the EU must contain a company's registration number, place of registration and registered address. It classifies this information as a "disclaimer.jpg" although it merely informs email recipients.

The UK's Companies Act 1985 required this information in letterhead and order forms and later applied that to email communications as well.

However, it was the protection of privacy that encouraged other types of disclaimers, especially those related to confidentiality.

The GDPR doesn't require email disclaimers, but it does require that companies get consent before sending marketing emails and always allow for opting out. Including an unsubscribe/opt-out disclaimer statement in your email footer can help you stay compliant with the GDPR in that regard.

US

Like the EU directives and the laws of its member states, the US has laws and regulations that don't require email disclaimers, but do encourage them.

These laws include:

• Federal Information Security Modernization Act (FISMA) - This act covers the security of data used by federal and state governments. Emails from government employees may include a disclaimer referencing this act. Texas has a similar state law called the Public Information Act that classifies information made public and indicates data that must remain confidential.
• Federal Rules of Civil Procedure (FRCP) - These regulations control civil court procedure in the United States' federal courts. Revisions in 2006 describe how electronic data is exchanged and protected, as well as data that is not subject to search.
• Health Insurance Portability and Accountability Act (HIPAA) - The second title of this act describes security measures needed to maintain the confidentiality of health information.

These laws offer subtle influence for email disclaimers. Other laws, like anti-spam regulations, are more direct.

Anti-spam

Anti-spam laws establish requirements for marketing email and call for penalties for businesses that violate them. The main requirement of these laws is that customers must be given the ability to stop receiving emails.

This requirement is commonly met by including an "unsubscribe" or similar link in emails.

The Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM) is one of the most well-known acts. This American act covers all commercial messages, not just bulk promotional email. If you contact an American customer with the intention to encourage a commercial transaction or advertise a product or service, you must offer an unsubscribe link.

Canada also has an anti-spam law called the Canadian Anti-Spam Law (CASL). This thorough law applies to businesses that promote themselves over email or install software programs on customers' computers and mobile devices. It applies to any entity that carries out these activities in or from Canada.

Besides including an unsubscribe link, emails must also:

• Disclose any third parties used to obtain consent, and
• Provide contact information in case customers have questions

EU member states must follow the Opt-In Directive established in 2002. Originally, it required a "soft" opt-in through a website checkbox, in-store email sign up or other direct communication. Now, there is discussion of requiring a double opt-in where customers may initially sign up for communication but must also confirm their consent again in a follow-up email.

Anti-spam laws can carry serious penalties, with the Canadian law allowing fines up to $10 million. If you operate in a jurisdiction with these laws, you must at a minimum offer an unsubscribe link in your emails.

When to Use Email Disclaimers

Email Disclaimers can commonly be found in communications where the sender is trying to limit liability or inform a recipient of something important.

Here are a few common disclaimers found in commercial emails.

Unsubscribe

As noted above, most laws that deal with commercial emails require at minimum a way for recipients to unsubscribe.

While you don't need an unsubscribe disclaimer and can just provide an unsubscribe link, including the disclaimer language can be a nice way to help your recipients understand that they can easily unsubscribe from your emails.

This example from a mail signature website reminds users of their subscription and offers a way that they can stop receiving emails:

The same web page also offers a shorter version:

You can also use a softer approach if you wish to emphasize dedication to customer service:

At minimum, you need to include a conspicuous unsubscribe link. Without that, you will be violating most anti-spam laws.

Confidential information

If you are in a field where you transmit confidential information via email - such as the health or legal field - you should consider adding a confidentiality disclaimer.

This example disclaimer from TechSoup Canada explains that the email is confidential, is meant only for the intended recipient, and requests that if the email was sent to someone else, to please notify the sender:

This disclaimer is helpful for reassuring customers that their communications and information is being kept private. They also put recipients on notice that the information in the email is confidential.

However, no law requires unintended recipients to destroy confidential emails or actually notify you of your mistake. Even if you include this disclaimer, you'll still need to take measures to protect confidentiality and send emails with care.

Contract discussions

If you provide quotes or pricing information through email, there is a risk that a user may consider your quote to be a binding contract that you will perform these services and at that price.

A disclaimer stating that providing this information is not a contract can protect you from civil liability and misinformed customers.

This example addresses price quotes:

It's also a good idea to make it clear how a contract is actually formed, and what the process you have in place is.

If your business frequently offers quotes for services, this may be a good disclaimer to place at the beginning of your email rather than the end so that it's more easily noticed. That will prevent any misunderstandings that could lead to civil liability.

Copyright protection

You can include a copyright notice in your email to give notice to recipients that your content is yours.

While this notice isn't required by law, and you'll still have copyright protection without including the notice, having a notice can still help deter plagiarism and infringement.

Possibility of viruses

Since it's possible to send viruses through email without knowing or intending to do so, many companies add an email disclaimer to waive this liability. This is a common practice for companies that provide download links through email.

TechSoup Canada offers this example:

Even if you are certain of your security measures, including this disclaimer is a good legal precaution.

General disclaimers

You can use a general disclaimer that covers a combination of issues. Here's an example from TechSoup Canada that covers confidentiality, viruses, and errors and omissions.

While email disclaimers may not excuse you from all liability, they are a good tool for staying compliant with information security and anti-spam laws. There's no set formula for writing email disclaimers, but your best course of action is to use plain language that people will easily understand.