Almost every organisation now provides in the footer of their correspondence a small disclaimer, provided to protect the organisation from any liabilities. But how legally enforceable are these disclaimers, really?
The answer is – not very.
The basic principles of contract law stipulate that for a contract to be enforceable, both parties must have intended to be bound. In this way, an email containing the terms ‘the contents of this email are confidential’ does not MAKE the contents confidential contractually. While the words may not have any contractual utility, the contents of a confidential email may nevertheless be capable of protection under the law of confidence.
The truth of the matter is that a court will take the circumstances of the arrangement into consideration to determine whether the terms of the disclaimer should be upheld. This involves looking at the relationship between parties, an intent to be bound by both parties, offer, acceptance, consideration and all other contractual formalities. These preconditions are unlikely to be satisfied from a simple footer tacked on to the end of an email.
One way in which email footers can be used for legal protection is by preventing the formation of a contract in the first place. A footer claiming that “nothing within this email is intended as a contract” may be useful if some vague correspondence has already occurred regarding services, which ultimately falls through.
Email footer disclaimers and terms are a widespread practice among almost all Australian organisations. There are a generally harmless practice and probably ineffective, but the placebo effect they elicit may be worth the wordy post-script.