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法律英语:04 Are Email Disclaimers Legally Binding?

时间:2010-07-07 01:17来源:互联网 提供网友:harryyang   字体: [ ]
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by Adam Freedman

Today’s topic: Those annoying email disclaimers
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Two of my readers, Jill and Alex have recently asked about those confidentiality2 notices at the bottom of some emails, which state that misdirected emails should be immediately deleted from the system of the recipient3. Jill asks whether they’re just a waste of time, and Alex asks whether they constitute a contract.
Are Email Disclaimers Legally Binding4?
Great questions! Yes, those disclaimers in your email can be annoying and they just smack5 of legalese. Of course, as the author of my own annoying disclaimer--that bit about no attorney-client relationship--I hesitate to pass judgment6 on other disclaimers. But what the heck?
The short answer is that, although some disclaimers are legally useful, and a few are even required, most of them have limited effect. But they rarely do any harm, which is why people tend to use them.
What’s the Point of Email Disclaimers?
For the most part, people use email disclaimers to protect themselves against legal claims that could be brought against them, either by the recipient of the email, or by third parties.
First, let’s consider the recipient of the email. Emails may contain professional advice or representations relating to business transactions. If the advice turns out to be bad, or the representations false, the recipient could sue the sender for negligent7 misrepresentations. That’s why companies sometimes include disclaimers saying that the content of the email is not be relied upon.  
Even Legal Lad Uses Disclaimers
That, incidentally, is the gist8 of the Legal Lad disclaimer: by stating that you and I don’t have an attorney-client relationship, I aim to avoid even the possibility that some listener or reader will claim that I rendered individual legal advice to him or her. Of course, I know you would never do that to me. But what can I say? I’m a lawyer; I’m cautious.
In any event, a court will look at all the facts and circumstances when determining whether or not an attorney-client relationship exists. But in the mix of facts, a disclaimer can make a big difference. Not long ago, the Ninth Circuit Court of Appeals held that a disclaimer in “plain English” can be effective in avoiding the creation of such a relationship.
How Can Email Disclaimers Protect You?
Another issue is contractual liability. That refers to the situation where the email recipient thinks he has a contract with you, but you didn’t intend to form a contract at all.   For example, you send an email to the local chimney sweep expressing interest in his services. He thinks you’ve already agreed to hire him, and the next thing you know, you’re trying to stop a guy in a top hat from climbing onto your roof. That’s why emails sometimes contain disclaimers to the effect that they are not intended to form a contract.
So: an email disclaimer can prevent a contract from being formed, but to answer Alex’s question, an email disclaimer does not create a contract with an unintended recipient. Contracts require a “meeting of the minds” – they cannot be dictated9 unilaterally.
One note of caution: a court in Scotland recently observed that a disclaimer saying that “nothing in this email constitutes a contract” applies only to the body of the email, not to any attachment10. So you’ll want to be precise in wording any disclaimer.
Disclaimers to Protect Against Claims by Third Parties
Now, let’s look at claims by third parties. The most common issue here is liability created by misdirected emails.   For example, say company A and company B are in the middle of negotiating a deal.  Now suppose that somebody at company A accidentally sends an email with confidential1 information about company B to a friend of his at company C. Of course, company A’s email contains a standard disclaimer saying that “if you are not the intended recipient of this email, you must delete it.”
Can company B sue company A for breach11 of confidentiality?  Probably so--at least if the two companies have some sort of confidentiality agreement. In the lawsuit12, company A would argue that its standard disclaimer proves that they took all reasonable precautions to guard against accidental disclosure of information. That might help, but it’s no silver bullet.
Disclaimers at the bottom of an email are not very persuasive13.Courts will look at many factors, including the placement of the disclaimer. Disclaimers at the bottom of an email--which is where most of them go--are not always very persuasive. By the time the reader gets to the bottom, he or she will have already read the supposedly confidential material--which suggests that the sender wasn’t all that vigilant14 about safeguarding the contents of the email.  
The same analysis applies to attorneys, who usually include similar language in their emails to avoid liability for accidentally disclosing information protected by attorney-client privilege. Again, the disclaimer might help, but it won’t automatically get the lawyer off the hook.
When are Disclaimers Legally Required?
And finally, keep in mind that some disclaimers are legally required. In the US, companies in the healthcare industry and in financial services are often required by law to include certain disclaimers in their emails. Also, under IRS regulations, people who provide tax advice are required to use an email disclaimer. Irritating or not, please cut these email senders some slack, because after all, the law’s the law.
Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful15 Life. 
You can send questions and comments to.....Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.
 


点击收听单词发音收听单词发音  

1 confidential MOKzA     
adj.秘(机)密的,表示信任的,担任机密工作的
参考例句:
  • He refused to allow his secretary to handle confidential letters.他不让秘书处理机密文件。
  • We have a confidential exchange of views.我们推心置腹地交换意见。
2 confidentiality 7Y2yc     
n.秘而不宣,保密
参考例句:
  • They signed a confidentiality agreement. 他们签署了一份保守机密的协议。
  • Cryptography is the foundation of supporting authentication, integrality and confidentiality. 而密码学是支持认证、完整性和机密性机制的基础。
3 recipient QA8zF     
a.接受的,感受性强的 n.接受者,感受者,容器
参考例句:
  • Please check that you have a valid email certificate for each recipient. 请检查是否对每个接收者都有有效的电子邮件证书。
  • Colombia is the biggest U . S aid recipient in Latin America. 哥伦比亚是美国在拉丁美洲最大的援助对象。
4 binding 2yEzWb     
有约束力的,有效的,应遵守的
参考例句:
  • The contract was not signed and has no binding force. 合同没有签署因而没有约束力。
  • Both sides have agreed that the arbitration will be binding. 双方都赞同仲裁具有约束力。
5 smack XEqzV     
vt.拍,打,掴;咂嘴;vi.含有…意味;n.拍
参考例句:
  • She gave him a smack on the face.她打了他一个嘴巴。
  • I gave the fly a smack with the magazine.我用杂志拍了一下苍蝇。
6 judgment e3xxC     
n.审判;判断力,识别力,看法,意见
参考例句:
  • The chairman flatters himself on his judgment of people.主席自认为他审视人比别人高明。
  • He's a man of excellent judgment.他眼力过人。
7 negligent hjdyJ     
adj.疏忽的;玩忽的;粗心大意的
参考例句:
  • The committee heard that he had been negligent in his duty.委员会听说他玩忽职守。
  • If the government is proved negligent,compensation will be payable.如果证明是政府的疏忽,就应支付赔偿。
8 gist y6ayC     
n.要旨;梗概
参考例句:
  • Can you give me the gist of this report?你能告诉我这个报告的要点吗?
  • He is quick in grasping the gist of a book.他敏于了解书的要点。
9 dictated aa4dc65f69c81352fa034c36d66908ec     
v.大声讲或读( dictate的过去式和过去分词 );口授;支配;摆布
参考例句:
  • He dictated a letter to his secretary. 他向秘书口授信稿。
  • No person of a strong character likes to be dictated to. 没有一个个性强的人愿受人使唤。 来自《简明英汉词典》
10 attachment POpy1     
n.附属物,附件;依恋;依附
参考例句:
  • She has a great attachment to her sister.她十分依恋她的姐姐。
  • She's on attachment to the Ministry of Defense.她现在隶属于国防部。
11 breach 2sgzw     
n.违反,不履行;破裂;vt.冲破,攻破
参考例句:
  • We won't have any breach of discipline.我们不允许任何破坏纪律的现象。
  • He was sued for breach of contract.他因不履行合同而被起诉。
12 lawsuit A14xy     
n.诉讼,控诉
参考例句:
  • They threatened him with a lawsuit.他们以诉讼威逼他。
  • He was perpetually involving himself in this long lawsuit.他使自己无休止地卷入这场长时间的诉讼。
13 persuasive 0MZxR     
adj.有说服力的,能说得使人相信的
参考例句:
  • His arguments in favour of a new school are very persuasive.他赞成办一座新学校的理由很有说服力。
  • The evidence was not really persuasive enough.证据并不是太有说服力。
14 vigilant ULez2     
adj.警觉的,警戒的,警惕的
参考例句:
  • He has to learn how to remain vigilant through these long nights.他得学会如何在这漫长的黑夜里保持警觉。
  • The dog kept a vigilant guard over the house.这只狗警醒地守护着这所房屋。
15 lawful ipKzCt     
adj.法律许可的,守法的,合法的
参考例句:
  • It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
  • We don't recognised him to be the lawful heir.我们不承认他为合法继承人。
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