[Sussex] E-mail Disclaimers

Geoff Teale Geoff.Teale at claybrook.co.uk
Thu Mar 27 08:45:01 UTC 2003


Derek H wrote:
-------------
> So far as I am concerned they are an absolute pain and 
> contravene the relevant email RFCs for length of signature.

Legal departments don't know or care about RFC's.  

Another effect is that the big block of text that Hogg Robinson bolt onto my
e-mails means that I am far less careful about what I put in my own sig
file.

> I faced the same problem here in France and the answer was 
> that no-one can reneg on legal duties. The company is 
> responsible for the company and its servants though it can 
> have internal policies.
> On that basis, they cannot disclaim responsibility for the 
> emails sent in the company's name _but_ they can use 
> disciplinary measures if staff contravene the policy.

!!IANAL(BMWI)!!
Please bear in mind that whilst both the French and the English are to some
degree within the scope of EU law that the English and Welsh legal systems
(along with some commonwealth states) are different in almost every
important respect to the system derived from Roman law used in most of the
rest of the world.  When you talk about the disclaimation of responsibility
you are right in the sense that the company provides the mechanism, but tort
is very complex.  I shall try to explain:

Think about a spanner in a garage.  The spanner is the property (and
mechanism) of the business.  IF one the mechanics hits a customer with the
spanner, to what degree do you believe the company is responsible?  With
regard to the spanner, it is a necessary part of the business and must be
available to trained staff, so long as the company did not instruct its
staff to hit customers with spanners they are in no means responsible simply
because they provided the mechanism.   However if you took that stance that
business was negligent in employing a psychopathic mechanic or in not
training the mechanic not to hit the customer you may have some success.

Refering this back to your point - a disclaimer saying "Enter the garage at
your own risk", or even "Warning - danger of cranial injury from weilded
spanners" would not excuse the employers liability at all, this is exactly
as you state.  However, if such a disclaimer was there then it would be
possible to argue contributory negligence - that is, if you read a warning
and ignore it and are injured as a result then you contributing to your own
injury and so the other negligent parties would only be responsible for a
portion of the damages.  Noteably cases that go to court where people say "I
slipped on a wet floor and broke my leg" and it turns out that there was a
yellow sign saying "Danger: slippery surface" almost always turn out as 100%
contributary negligence (the moral here is that the court system don't like
time-wasters and petty Daily Mail readers).   I should point out that
contributary negligence can exist where there is no disclaimer.  The much
e-mail forwarded story about the woman who sued McDonald's because she burnt
herself on their coffee is largely falsified - such a case did come to
court, but it was held that customers expect coffee to be served with water
just off the boil (as it would be for a fresh cup), in this way it was held
this was a case of 100% contributary negligence - the legal system is not
always so far from "common sense" as we imagine.

Back in the context of e-mail disclaimers this is all still relevant.
Remember that whether you or your company is responsible for your actions is
a very blurry line.  A good rule of thumb is this - if you are using E-mail
for officially sanctioned business activities then it is likely to be your
companies responsibility - however if you send abusive e-mails to your best
customers CEO then you're probably on your own, your companies disclaimer is
largely to free them from some of the weight of negligence in giving you
access to the mechanism by which you caused offence.  

> Most companies actually use the signature/disclaimer as a 
> freebie spam advert which will become unlawful in the UK 
> soon. 

Hmmm, I don't think anything attached to a companies valid e-mail to people
who would recieve e-mail from those addresses on a normal basis will ever be
defined as spam.  Also bear in mind that our government is basically
pro-advertiser and anti-privacy as far as web technology is concerned - no
prizes for guessing which major labour-party donors pretty much define our
countries IT policy (which might also explain why, other than Italy) we have
the least open-source friendly public sector in Europe.

>I have no problem with a simple "The views expressed in 
> this email may not reflect the views of this company." or similar.

Lawyers often feel the need to explicitly cover every angle.

WIth all of this please remember, the Law and IT don't mix.  The IT in law
firms in legendarily bad and the law in IT is just as bad.  Most software
licenses are at least in part invalid (including Microsofts EULA) if you
care to fight it out in court.  A lot of legislation concerning technology
is made with no accurate understanding of the technology and our ministers
are only hearing the lobbyists working for big businesses who stand to
benefit from abuse of technology.

Until IT people start taking a real interest in IT law and actively lobby
government to make changes this will remain as it is.

-- 
geoff.teale at claybrook.co.uk
tealeg at member.fsf.org

If God is perfect, why did He create discontinuous functions?

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