When printing off emails or even scrolling down to see the past parts of the trail, we will all have experienced seeing either the final several pages of accumulated email footers, or having to pick between the footers for the actual content of the conversation.
There seems to be a tendency towards footer “inflation”, and also a lot of copying from others, without properly considering either the applicable obligations or the advisability of what is being said. Let’s try to cut through this to what is really required and useful to have in an email footer in the UK.
A. Corporate details
As on websites, certain corporate details must be presented on a company’s “business letters” (as well as order forms etc.). Business letters isn’t defined but where electronic documents are used, the rules for the paper equivalent apply. If we consider the purpose behind the rules (ability to contact the company, to be aware whether we are dealing with a limited company or partnership, etc.) then certainly any emails containing sales offers or making contracts should definitely be covered. In the EU legislation the reference is to “letters” which does not help much. In any case, it would be fairly exceptional to have a selection of email footers for different purposes, or take the time to consider which one to use in each case, so a default for all emails is the only really practical method.
What is required is:
- the company’s name
- its place of registration (England, Scotland etc.)
- its registered number
- its registered office address
- for companies not needing to use the word “limited”, community interest companies and investment companies, there are some special requirements, and
- if it is being wound up, that fact.
This information needs to be capable of being read “with the naked eye” and so having these details behind a clickable link is not acceptable. Could an exception could be text messages or emails sent from a mobile phone? Strictly speaking, if these count as “business letters” all the above should be included. For text messages this seems less likely and it might seem harsh to interpret the regulations in this way. Other phone messages might be similar. We feel at least it should be apparent that the message was sent “on the go” and so might not necessarily be as “official” as a normal work email (so “sent from my iPhone” might actually not be such a bad default after all). However, the risk-free approach is to use the same footer on all phones/iPads/tablets etc.
B. Confidentiality Notice
This seems a little outdated now – receiving an email in error was possibly more of a fear of technical error in the early days of email. Even more likely this stems from the days of faxes which were easy to mis-send and mostly would include a cover sheet which would be read first and where these warnings could conveniently be placed. Today the error is more likely to come from the fact we have misspelled or entered the wrong name. Perhaps surveillance is more of a current concern – but whatever we put on the email will not override legal intercept laws.
In relation to inadvertent disclosures (e.g. by inserting an incorrect or misspelt address), putting a confidentiality warning after the information that we don’t want people to read is clearly a little misguided. So best practice should be to put the confidentiality notice in the title (so visible before opening) or at least at the top of the text, yet this is hardly ever done as standard. The onus is still on the sender to consider whether to do so in each case. Now, the unsuspecting recipient has not agreed to keep anything confidential, so we cannot automatically consider that the email footer binds them like a contract. However, putting the recipient on notice that we consider the information confidential may enable us to argue that the information had “necessary quality of confidence” which places the recipient under a duty to maintain such confidence and not use it in any unauthorised way.
On the other hand, we believe that almost by accident we may be doing the correct thing – almost inevitably companies will be asked to sign non-disclosure / confidentiality agreements that contain requirements that information in order to be considered confidential must be marked as confidential or similar. (We would habitually resist this as it just adds a management issue to every disclosure and it seems much more practical to consider all disclosures confidential unless they fall into the logical exceptions – see another article on that here.) So, where we end up with this kind of obligation, then marking every email confidential (including annexes) seems to go some way to fulfilling this need.
There are a whole host of different issues that we might consider here:
- could the information be legally privileged?
- if we may be giving advice do we want: (i) to ensure that the information is relied on only by agreement; and (ii) to have our standard terms of business apply;
- we may want to prevent contracts being formed by email but only signed in writing by an authorised person;
- we may want to ensure statements (e.g. sales pitches) are not binding unless confirmed by a written contract;
- can we exclude liability for possible transmission of viruses?
- sometimes it can be advisable to state that views expressed are those of the sender and do not necessarily represent the views of the employer.
These are not legally required, or possibly even always legally effective (similar considerations apply as for confidentiality).
If you are subject to regulatory rules such as professional privilege then this is a something that ought to be considered in relation to each particular communication and probably indicated in the header in proper cases. Also if you work on specific terms of business then it may be useful to mention and link to them so that readers are put on notice or reminded that they are applicable to the relationship. On the other hand, if you are a press officer then the views expressed may in fact reflect the views of the institution so that disclaimer is clearly not applicable. What we are saying is that for specific businesses or specific roles some of these might be good to include. However, for most purposes many of them will be superfluous and just overload our disclaimer so that it is never read.
D. Legal effects and best practices
There is not much legal guidance on whether email disclaimers and warnings are legally binding (in the US there are a few cases). There are a lot of opinions: “no-one reads them so they are unenforceable”; “if the recipient has not agreed to confidentiality then an email notice cannot create such an obligation”; “courts will look at the true facts in all the circumstances and so the email footer is inconclusive”, etc.
We agree that there may be an element of companies using them because: (i) everybody else does; (ii) they cost (almost) nothing; and (iii) we need to put some mandatory information, so why not add a few extras?
So are they actually useful? Good practices would be:
- Always comply with part A above – you can be fined if you don’t. Some businesses – financial services, regulated professions, health-care etc. – will be subject to additional sector-specific rules. Also don’t forget the laws against spam which require additional information (withdrawal of consent etc.) on marketing emails;
- A confidentiality notice may be helpful with business partners for the reasons given above, and with third parties in order to detect and manage inadvertent disclosures;
- If you have particular business requirements (e.g. customers must accept standard terms and conditions, customers must accept limitations on liability) then it seems helpful to include a reference to them in the email in order to be able to show that they have been brought to the attention of your contacts.
Further recommendations would be:
- never use language or concepts that are: (i) ridiculous – e.g. “if you are not the addressee, you must not open this email”, when that wording is not visible before opening; or (ii) unsustainable – e.g. “disclosing this email will subject you to legal action”;
- stick to the really applicable points – this means looking at your business and what is actually required – but possibly also that a different version is needed for sales, legal, directors’ correspondence etc. Also consider that what you might be able to impose on other businesses may be totally ineffective if dealing with individual consumers;
- keep it short and visibly different from the email text;
- review it periodically to ensure that it still meets your needs and expectations and any developments in the law; and finally
- always use plain English (or the language you use for business) – legalspeak that cannot easily be understood by all is much less likely to be enforceable (and much more annoying).
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