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Simplifying Email Disclaimers

Email disclaimers - what's the point?
What is an email disclaimer?
So why might the law require me to have one?
Is there anything else I need to add?
Sounds like I should do all of this. I'd better set up some signatures on my email clients.
So what are my alternatives?
Is there a downside to adding the email disclaimer on a firewall/anti-virus/anti-spam system?
Where is the best place to add the email disclaimer then?
Why would I want to add email disclaimers to internal mail?
Do I need dedicated email disclaimer software?
Are there any other considerations?


Email disclaimers - what's the point?

Email disclaimers... they're just those annoying and pointless statements at the bottom of an email, right? So why have you come to a site devoted to the subject? The answer is most probably because you have been told you need an email disclaimer. Maybe your boss has told you to set one up. Perhaps your legal department has insisted on it. And the reason will almost certainly be because the law requires it for your industry! And as you will learn, there is a lot more to the subject of email disclaimers than you would imagine.

"But email disclaimers carry no legal authority!" you exclaim. And at this point we have to clarify what we mean by a disclaimer.

What is an email disclaimer?

Strictly speaking, an email disclaimer is a piece of text designed to try and limit liability, often placed at the bottom of an email. This is frequently combined with a confidentiality notice starting along the lines of "This message contains confidential information and is intended only for...".

This kind of text has dubious legal merit but depending on the issues involved may just sway a case in your favour.

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So why might the law require me to have one?

This is where we have to expand the definition of an email disclaimer to encompass any text that is put into a message which is additional to the main content. Also referred to as an email footer, email signature, email boilerplate and email signoff among various others, the content often includes the company name, registered office address and company registration details as this is a legal requirement for business email in many countries, including the majority of those in the European Union.

Some industries may require a company to make certain disclosure statements when communicating by email, for example those companies governed by the Health Insurance Portability Accountability Act (HIPAA) in the United States.

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Is there anything else I need to add?

If you are going to the trouble of adding extra content to your emails, you might want to consider smartening up your company image with logos and personalising each message with the sender's contact information.

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Sounds like I should do all of this. I'd better set up some signatures on my email clients.

Many email clients such as Microsoft Outlook have a "Signatures" feature built-in which can be set up to enter some predefined content when you compose a message. Set it up so that every email client has the right signature and you're home free, right? Well, in an ideal world, yes, but in the real world it's a little different. Because these signatures are all set up on the client machines, users will sooner or later either delete or change your signature files. It may be deliberate or it may be accidental, but that's what users do! And if you overcome that problem, they can still deliberately or accidently delete the text straight out of the message. If email compliance regulations require you to have an email disclaimer then this method is not reliable enough.

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So what are my alternatives?

The first step is to take responsibility for adding the email disclaimer away from the email client, and set it up on a system further down the line. Possible candidates here might include a firewall, an anti-virus or an anti-spam system. Generally this type of software or device will include a feature for adding text to some or all email messages that pass through it. Assuming that all of your messages route through this system, this solution ticks all the boxes in terms of straight email compliance.

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Is there a downside to adding the email disclaimer on a firewall/anti-virus/anti-spam system?

From the purely legal standpoint the answer is no, unless your regulations require you to add a disclaimer to internal messages. In practice, however, there are some drawbacks.

Firstly, many of these systems simply allow plain text to be entered. That means no control over the colour and layout, and no logos or other images.

Secondly, there is unlikely to be any control over where the email disclaimer goes, other than at the very top of the email or at the very bottom.

Thirdly (and this is the most irritating one), there is unlikely to be any way to prevent the system adding the disclaimer again if it is already there. After several replies have occurred in an email exchange, disclaimer text can very quickly build up so that it ends up largely becoming an email disclaimer exchange, dwarfing the useful part of the message.

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Where is the best place to add the email disclaimer then?

For maximum flexibility, the email disclaimer should be added by the server that handles message transport. For example, in the case of Microsoft Exchange, disclaimers should be added on the Exchange 2003 or 2000 server itself, and for Exchange 2007 and above they should be added on the server with the Hub Transport role. The flexibility comes from the fact that these servers handle ALL emails, both internal and external.

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Why would I want to add email disclaimers to internal mail?

With the right software, you can add much more than just legal disclaimer text to your email messages. You should also be able to start differentiating between internal and external messages so that the content that you add varies depending on its destination. In fact you should be able to configure the system to go much further than that and add different content based on any number of factors, such as who the individual senders and recipients are, which groups they are members of, what content is in the email, and much, much more.

So, for example, you could add the sender's internal extension number on internal messages, and put their full contact information with email disclaimer on external messages.

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So I need dedicated email disclaimer software?

Your customers and suppliers may well receive more communication from you by email than any other medium. In some cases it may be the only written communication they ever receive from you. It is therefore important that your email communication presents your company in the most professional manner possible. Some email systems provide a solution out of the box. For example, there is a Microsoft Exchange disclaimer feature provided with versions 2007 and above. These solutions tend to be fairly basic, however.

Good quality email disclaimer software must provide several things. It should:

  • Integrate into your directory services (Microsoft Active Directory etc).
  • Allow you to set up rules that vary the content that is added to a message depending on any of the various attributes that the sender, recipient or the message itself may possess.
  • Allow you to read content from the sender's or recipient's attributes in the directory and add it to an email. For example, using the sender's email address, look them up in Active Directory and add their Job Title, Department and Telephone number to their messages.
  • Support the three different message formats, HTML, RTF and Plain Text.
  • Have a rich, fully featured editor to allow you to create professional looking messages, whether just for some subtle legal text at the foot of the message, or for visual impressiveness with company logos, tasteful contact information blocks and tidy legal disclaimers.
  • Allow you to add content not just at the header or footer of the email, but also after the most recent reply. If you wish, you should be able to place the company logo at the top of the message, the contact information just below the most recent reply and the legal disclaimer text at the very bottom of the message.
  • Allow you to prevent the disclaimer being added multiple times.
  • Provide enterprise-grade reliability and performance. Your email system is likely to be one of the most important systems in your organisation, and the email disclaimer software will potentially be processing and modifying every message. You must be sure it can handle signed and encrypted messages, messages with foreign characters, attachments, huge message bodies, meeting requests, messages from mobile devices, badly formed messages, corrupt messages and the myriad other types of messages that flow through your email systems. And it must be able to do all of this at a continuous rate of many messages per second.

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Are there any other considerations?

Having decided to add email disclaimers into your messages, several things should be considered:

  • Size - don't have such a large email disclaimer that it becomes tiresome and expensive to download on devices that are charged per quantity of bandwidth consumed. Likewise, be sensible with the size and number of images that you incorporate into your disclaimer designs.
    Remember also that you and your recipients are likely to be storing these messages in the email servers' message stores as well as in email journaling or archiving systems. You don't really want your storage consumed by vast numbers of lengthy repeated email disclaimers and duplicate images.
  • Different message formats - If you are doing more than simply adding legal disclaimer text, it's all very well designing stunningly branded email but what happens when one of your messages turns up on a device that can only display plain text? Or what about those email clients that send in RTF? Make sure that your email disclaimer software allows you to add the email disclaimers in a way that is appropriate to the message format rather than simply synthesising a Plain Text or RTF disclaimer from the HTML original, because it will almost certainly look wrong. In other words, ensure that you can make three separate disclaimer designs relevant to the three different message formats.
  • Avoid complicated HTML - it's easy to get carried away with email branding but remember that not all email clients render HTML in the same way. What may look perfect in Microsoft Outlook may look quite inferior in one of the popular web-based email systems. The simpler the code, the more likely that the email disclaimer will appear as you originally intended.

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Third-party disclaimer software links

Exclaimer Mail Utilities - adds disclaimers, signatures and branding to your email. It's really easy to use and they do a 30-day free trial so if you don't like it you don't have to use it.


Sample email disclaimers

Disclaimer text


Books

Privacy for Business: Web Sites and Email
by Stephen Cobb

Email, the Internet and the workplace
by Sprecher Grier Halberstam


Internet resources

'The Legal Position of E-mail Disclaimers'
by Simon Halberstam

Email Legislation: A summary of UK, European & US legislation - PDF 172KB
by Exclaimer

Disclaimer Fun
by Rui Silva


Email compliance

Sarbanes-Oxley
IRS - Circular 230
Companies Act 2006 (UK) - PDF 2.72MB


Useful links

Exclaimer - for email disclaiming, branding and adding signatures to email using Microsoft Exchange

Rocketseed - provides email signatures and advertising

Spamhaus - email blacklist providers

MSExchange.org - articles, guides and much more relating to Microsoft Exchange