[This was written with Martums and originally published on attrition.org.]
We thought it would be a fad. Ok, we hoped it would be a fad, destined to go away as quickly as it came. Unfortunately, those worthless e-mail legal disclaimers still pollute the internet. Written by overzealous lawyers that don’t seem to realize the
stupidity futility of their effort, poorly worded legal gibberish tries to force you into binding contracts to protect their careless mistakes. One of their employees just fires off an e-mail full of corporate secrets? No worries! That legal disclaimer will ensure the unintended recipient deletes it without question! Wishful thinking douchebag lawyers.
We can’t help it–this really makes us nuts. When will these people learn? You transmitted your crappy mind-numbing message to us, in plain text, over the public internet. It’s ours (and whoever is sniffing our mail) to do with as we please and you can’t have it back, so piss off. We won’t delete it, we will publish it, we will forward it, and there is nothing you can do about it. Go ahead, take us to court, but try to find a shred of legal precedent first, ok?
Many other folks have chimed in on this epidemic of user stupidity previously. How many articles must be written, how many snarky replies sent, before these litigious prone companies pull their collective heads out of their asses?
To be fair, some people work at Really Big Companies® where one of these boiler-plate atrocities dutifully gets stamped on the end of all outgoing messages by the mail server, regardless of the user’s common-sense quotient. These people cannot be held liable for their employer’s misguided sense of self preservation. Then there are those middle-management, PHB, bottom-feeding, thumb-sucking imbeciles who insist on following the rest of the herd and slap together their signature with a poignant indicator of their blatant ignorance of the law. If all you have is a hammer…
How did we get here, and what are we doing wrong that we feel the need to include these ridiculous appendages in the first place? Did someone accidentally (oops) send private client data to the wrong recipient (idiot)? Did someone mistakenly enter the wrong alias in the To: field (asshat)? Or did they forward a confidential document to their competitor (moron)? Or maybe they asked Attrition staff really stupid questions? (brilliant!) Gotta love those squirrels at least.
If you transmit any content to the wrong recipient, contact them, confess your sin, and gently ask for their mercy. If they use it against you, that’s malicious behavior on their part and they might be on the fast track to hell. I certainly know how we’d handle it here. There’s plenty of room next to Hoffa in the Giants’ end zone for another corpse. Why plead for mercy? Simple, because there is absolutely no legal precedent for these legal disclaimers having any weight in any court of law.
What to do…
What are some best practices that the average corporate peon can do instead of attaching silly disclaimers to every mail? Don’t hit send until you’ve proofread the mail, including the headers. Typos happen. Responsible grown-ups should catch them. Sensitive information? Encryption is your friend. Really sensitive information? FedEx is your friend. Voilà! What are the consequences of any content or attachments you accidentally send being made public? Is it worth ten bucks to use an overnight carrier instead of ending up as the latest entry on Dataloss? What’s your reputation worth? Remember, email’s like a postcard, open to the world. We love other people’s postcards.
Failing that, if your dimwit corporate lawyers insist on keeping the disclaimer, either take a baseball bat to their kneecap or demand that the disclaimer go at the top of the mail. While crappy mega-giant software makers can get away with ‘shrink wrap licenses‘, as Paul Goodman says, “Despite their widespread use, there still remain serious legal questions regarding the validity of the shrink-wrap license.” Like the shrink wrap licenses, e-mail disclaimers at the end of the e-mail force a user to open the mail/software before ‘agreeing’ to the terms. No, they don’t really agree, but that is the implication and desire of such licenses.
Tired of seeing these silly disclaimers on every third public mail-list post? What to do.. what to do! Easy, follow their instructions. Almost every disclaimer has a provision that suggests that if the mail is not addressed to you, you should send it back to the person that sent it in the first place, or send it to the legal counsel of their firm. Ok! Every.. single.. mail, do just that. If they send it to email@example.com, it was not addressed to you, and by their own twisted reasoning it should be sent back to them so they can figure out what bad things are happening as a result. One post to a list of 5,000 responsible professionals that honor these goofball disclaimers and guess what..
“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…Even though their effectiveness in court is doubtful…” — From the UK’s weblaw via Jeff Goldberg
“But there’s a fine line between legally wise and intellectually ridiculous.”
The sobering reality is, however, that the validity of these disclaimers have not yet been tested by our courts and most businesses draft and implement their disclaimers in such a way that they are invalid, unenforceable and useless.”