How important is it to have an e-mail disclaimer?
Some companies have them, some don't - that little bit of legalese tacked onto the bottom of e-mail, that is normally just ignored and forgotten about. But there are occasions when that little bit of legalese may make a big difference to your business. Recently a colleague of mine who had bought computer hardware from a major supplier was very unhappy with the service he received and especially unhappy about the reply e-mails he received to his queries. Being a frequent visitor at MyADSL, his immediate reaction was to copy the e-mail that had incensed him and post them on MyADSL for everyone to see.
From the point of view of the hardware supplier, this is probably the last thing they would want, and the negative publicity could be out of proportion to the issue. However, because they did not have any form of e-mail disclaimer on the e-mails that they had sent, it is difficult to see how they could have prevented him from posting the e-mails, or once they had been posted, how to get then taken off the website to prevent further damage.
Luckily, section 77(1) of the Electronic Communications and Transactions Act, no.25 of 2002 provides a mechanism for a "takedown notice" to be issued to the service provider that is hosting the website, requesting that the offending material be removed from the website immediately. However, in order for a takedown notice to be issued, a number of conditions need to be met, one of them being that "the rights that have allegedly been infringed be identified", 77(1)c. So if the e-mail had contained a disclaimer that stipulated that the material was confidential and intended solely for the use of the individual to whom it was addressed, the publication of the email on the website would obviously breach the right to confidentiality, and as such this could found the basis for a takedown notice.
Thus, if one looks at the potential harm to any business that could occur from e-mail communication being copied and posted on the Internet in some way, either on a discussion/ online forum website, or even in something as simple as a blog, it surely makes an awful lot of sense to take a few precautionary steps and ensure that all company e-mails have a disclaimer on them; a few minutes' thought about the type of e-mails you send from your business, and potential harm that the publication of these on the Internet could cause should be enough to convince most prudent business owners. Perhaps it is prices or technical details that you really would not like your competitors to see that could be posted by an unhappy employee or a customer of yours, perhaps it is an internal disciplinary procedure, a personnel record, or perhaps it is just a case of somebody being quoted out of context; all of these could cost your business a lot of goodwill. In the online world of the Internet, speed is always of the essence and as such, long-term legal solutions that could take months or years to implement are of little value, which is why section 77 of the ECT Act was introduced in order to facilitate a fast mechanism for the removal of materials.
Ensuring that you have the correct procedures in place to use section 77 would seem like a small price to pay for the protection it offers.
10 Mar 2007
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - email@example.com