Do I Need an Email Disclaimer? Will an Email Disclaimer Protect Me?

Last updated: 18 June 2024

The invention of email revolutionized how we communicate, but it also raised concerns about privacy and liability. You might be wondering: do I need an Email Disclaimer, and can it truly protect me?

In this short article, we explain the reasons for using Email Disclaimers in corporate communication and how they can help shield you from potential risks.

The 6 Risks of sending email

Broadly speaking, there are six risks that arise from email communication:

1. Emails containing incorrect information that the recipient relies on
2. Emails containing specific advice that the recipient misunderstands or misuses
3. Emails containing confidential information sent to the wrong person
4. Emails containing contact and personal details of the intended recipient sent to the wrong person (breach of Privacy)
5. Emails containing inappropriate comments that reflect poorly on the organisation, and
6. Emails containing job or contract offers

All six risks can be mitigated and company liability limited by including an Email Disclaimer, appended to the bottom of every email a business or organisation sends. Including a Disclaimer will not only ensure you make it clear that the email content is confidential and was intended for a particular recipient but it will also protect against any misuse of this information where possible.

What should an Email Disclaimer include?

Your Email Disclaimer should make it clear that:

1. The email is only intended for the recipient and that recipient alone
2. Any advice contained in the email is for the intended recipient only
3. The information in the email, including contact details, is confidential
4. The information in the email may not be used by the incorrect recipient
5. The email must be destroyed if received by the incorrect recipient (and the sender should be notified that the email was received by mistake)
6. The views and opinions expressed in the email do not necessarily reflect the views of the organisation

In this way, your Email Disclaimer covers each of the 6 risks listed above.

In the absence of an Email Disclaimer, an unintended recipient may be able to claim that they did not know or were not aware that the information contained in the email was of a confidential nature. They may also try to use this information to their benefit and claim they did not know it was sent to them in error.

Are Email Disclaimers effective?

Yes, generally speaking, Email Disclaimers are effective in reducing a company or individual’s liability, should an email be sent in error. However, Email Disclaimers do not provide full protection, and the extent of the protection has yet to be fully tested in Australian courts.

Are Email Disclaimers legally binding in Australia?

Email Disclaimers are not always legally binding in Australia, as their enforceability depends on the specific circumstances and content of the disclaimer. While they can provide a layer of protection by establishing expectations and outlining terms, they may not always hold up in court if challenged.

When should I use an Email Disclaimer?

You should use an Email Disclaimer on all your business communication. Including an Email Disclaimer at the end of all emails goes a long way in limiting the liability of the email sender, making the recipient aware of the confidential nature of the content and requesting that any email sent in error be immediately destroyed.

Email Disclaimers are now best practice for all businesses and are a fundamental part of risk management for any company.

About the Author: Vanessa Emilio

Vanessa Emilio (BA Hons, LLB, ACIS, AGIA) is the Founder and CEO of Legal123.com.au and Practice Director of Legal123 Pty Ltd. Vanessa is a qualified Australian lawyer with 20+ years experience in corporate, banking and trust law. Click for full bio of Vanessa Emilio or follow on LinkedIn.

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