The topic has entered my ken a couple of times recently from unconnected sources (here at the ABA TechShow and in the Economist), so I figure the time may be ripe to do something about the plague of verbiage that infects the bottoms of many emails sent by “important” firms and people. I’m talking about the disclaimers that tell the recipient — often in 8 point type — that the email may contain privileged information, is meant only for the person to whom it is addressed, and should be eaten if it winds up in the wrong hands.
Although the vague thrust is the same in all of them — “Gee, this is meant for Fred, but if we screwed up and sent it to you instead, close your eyes and make the problem go away.” — there is some variation on the theme. Nearly all use the “P” word, telling the reader that certain things are “prohibited” or even “strictly prohibited.” While some claim that going back to reread the thing itself is verboten, most reserve the injunction for “distribution or copying” the email. A typical example:
This E-mail contains legally privileged and confidential information intended only for the individual or entity named in the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply E-mail and delete the original message.
As it happened, the email to which this boot was attached did not contain “legally privileged and confidential” information. Suspecting this may be true much of the time, others only assert that the email “may contain” traces of the good stuff, leaving it up to you, the wrongful recipient, I suppose, to decide if that’s true or not.
It’s been suggested that what’s going on here is an attempt to impose a contract on the reader, but, of course, this unilateral blast doesn’t exactly constitute a meeting of minds. And should the information be confidential or subject to “solicitor-client privilege,” barking at a stranger won’t obscure the fact that you, the sender, have screwed up. Copyright seems to hold some water here: if I write a letter, I have copyright in the form of words used, which would enable me, in theory at least, to stop unauthorized copying; but we all know how powerful the laconic © assertion is nowadays, and, besides, it’s usually the information and not the exact language that the sender is worried about. (On the copyright point: in the old days, when I wrote a real honest-to-paper letter, I the writer kept copyright in the content, but the recipient owned the object itself. Can a recipient today “own” a received email?)
All in all, these things seem useless, only serving to perpetuate the stereotype of lawyers as wordy nincompoops. So suck it up and take it off. That’s my advice.
All of which you are prohibited — make that strictly prohibited — from regarding as legal advice, so don’t rely on it, and if you do I won’t be responsible for any trouble you get into; don’t bother suing me, I’m judgment proof.