Employers are responsible for the actions of their employees.
Please note the Law may have changed since the publication of article.
Norwich Union paid out £450,000 several years ago because of a libellous email sent by one of its employees. Defamation, unintended contract formation, misdirected emails all bring into focus the desirability of email disclaimers. The questions are what form should such disclaimers take and what is their likely effect.
In this article, Simon Halberstam considers these and related issues. The issues are considered more thoroughly in a guide to internet law available from Simon’s firm, details of which appear below.
The value of disclaimers is limited, since the courts normally attach more weight to the substantive content of the communication and the circumstances in which it is made than to any disclaimer. Having said that, disclaimers may possibly be helpful if an issue ends up in court in various respects such as those described below and, since disclaimers cost (almost) nothing, it is worthwhile to use them. Even though their effectiveness in court is doubtful, they may provide a useful argument in negotiations to resolve a dispute.
The comments below are based on the position under English law. It is likely that the position under the laws of most other countries is similar on most points, but specific consideration of the relevant laws of other countries would be an extensive exercise. One area where the laws of other countries is different is the compulsory disclosure of documents for legal proceedings. Many countries whose legal system is not derived from English law do not have compulsory disclosure, in which case the issue of exemption from disclosure does not arise.
Under English law a recipient of a communication is obliged not to disclose its content or use it for a purpose other than the purpose for which it was communicated, if (but only if) the communication was expressly or implicitly confidential. Whether a communication is implicitly confidential depends on whether a reasonable person in the position of the recipient would regard it as confidential. Clearly this leaves room for argument and there have been differing decisions on whether information provided voluntarily for the purpose of interesting the recipient in doing business is confidential.
Therefore an express statement that a communication is confidential may well make the difference between its being treated as confidential or not. It could be argued that such a statement is not effective in certain circumstances, for example if it is in small type and liable to be overlooked, or if it is at the end of the message and only seen by the recipient after he has read the substantive content. A clear and prominent statement of confidentiality is therefore to be recommended. However, even in the absence of such clarity, a disclaimer may be effective in relation to a particular message, particularly if the recipient has received messages from the same sender with the same statement previously.
A practice of expressly stating that Emails are confidential may also make it easier to enforce confidentiality obligations on employees and ex-employees. In deciding whether information disclosed to an employee is implicitly confidential or within the scope of an express confidentiality provision of a contract of employment, one of the factors to be considered is whether information of the kind has been treated by the company as confidential.
A suitable statement might be: “Unless otherwise agreed expressly in writing by a [senior manager] of [company], this communication is to be treated as confidential and the information in it may not be used or disclosed except for the purpose for which it has been sent. If you have reason to believe that you are not the intended recipient of this communication, please contact the sender immediately.”
Legal privilege
In English legal proceedings there is a general obligation to disclose relevant documents to the other party. For this purpose documents include information stored electronically and could include communications which have been erased but can be restored. This is, however, subject now to a requirement that the exercise of reviewing the documents which might be relevant should be proportionate to their likely value and the amount at stake in the litigation. Nevertheless, Emails required to be disclosed may provide significant relevant evidence in a commercial dispute.
Confidential communications passing between a company and its external and internal legal advisers for the purpose of giving or obtaining legal advice and communications which come into existence in preparations for legal proceedings are exempt (“privileged”) from this obligation of disclosure.
A confidentiality statement as discussed above helps to make the communication confidential, but its status as a communication made in circumstances attracting the privilege may be supported by a further indication to this effect and claiming the privilege. Such a statement will also warn a person who subsequently has the task of sorting out documents and deciding whether they should be disclosed or privilege claimed. However, such a statement will not confer privilege on a communication which is not in fact made in the circumstances described above. In addition, the statement would be devalued if it were used on communications not entitled to the privilege.
Subject to the above comments, a suitable statement on privilege might be: “This communication is made for the purpose of obtaining legal advice or preparing for legal proceedings and legal privilege will be claimed accordingly.”
Computer viruses can of course be transmitted by Email, particularly in attached files. It is desirable to attempt to place the risk and responsibility for checking on the recipient. Whether this would be wholly effective to avoid or limit liability will depend on the circumstances, but it is worth a try. Suitable wording might be: “WARNING: Computer viruses can be transmitted by Email. The recipient should check this Email and any attachments for the presence of viruses. [Company] accepts no liability for any damage caused by any virus transmitted by this Email. This Email and any attachments may not be copied or forwarded without express written permission of [a senior manager of company]. In the event of any unauthorised copying or forwarding, recipient will be required to indemnify [the company] against any claim for loss or damage caused by any viruses or otherwise.”
Under English law a company is liable for wrongful acts (torts) of its employees in the course of employment. The informal but recorded nature of Email has made liability for defamation a real risk, and this has been well-publicised. The ease with which software, data, text, music and graphics can be copied on computers, and the increasing organisation and vigilance of copyright owners, have also made this area one of significant risk.
Adding a disclaimer will probably not make any difference if an Email is sent in the course of employment, and is unnecessary if it is not. Nevertheless, a disclaimer on the following lines might possibly affect whether wrongful acts are characterised as being committed by employees and might also concentrate the minds of the employees: “Employees of [company] are expressly required not to make any defamatory statements and not to infringe or authorise any infringement of copyright or any other legal right by Email communications. Any such communication is contrary to company policy and outside the scope of the employment of the individual concerned. The company will not accept any liability in respect of such a communication, and the employee responsible will be personally liable for any damages or other liability arising.”
Contractual commitments
A binding legal contract can be formed by any exchange of communications passing between individuals who have actual or apparent authority to bind their companies. The communications can include Email, and there is a risk that this may bypass both internal procedures and any standard terms protecting the company. Again, this risk may be greater with Email than conventional procedures because it is both apparently informal, yet fully recorded.
An attempt may be made to limit the apparent authority of individuals to bind their company by wording along the following lines: “No employee or agent is authorised to conclude any binding agreement on behalf of [the company] with another party by Email without express written confirmation by [a director of the company].”
Sexual and racial discrimination and harassment
Nasty or even just careless internal emails may give rise to claims of discrimination and harassment. The importance of avoiding this should be drawn to the attention of all employees and covered in the company’s employment code of practice. It is unlikely that a company could avoid liability in this respect by virtue of a disclaimer.