Cengage Advantage Books: Fundamentals of Business Law Today 10th Edition by Roger LeRoy Miller

Exercise 21

CAN A DISCLAIMER PREVENTAN E-MAIL FROM FORMING AN AGREEMENT?
When you receive an e-mail from a business, the e-mail will usually include a list of disclaimers, which may be longer than the message itself. Indeed, disclaimers have grown longer over the years, but does that make them more enforceable?
Simple in the Beginning but Longer and More Complex Today
About twenty years ago, when e-mail first began to be used in business, disclaimers simply stated that the information contained in the e-mail was privileged, confidential, or proprietary. The typical disclaimer further said (and continues to say) that any use, distribution, copying, or disclosure to another person of the e-mail was strictly prohibited. Finally, the disclaimer generally told the recipient to destroy the message if it was not intended for him or her and to notify the sender by reply e-mail.
Today, disclaimers may also include automatic digital signatures with the sender's contact information and perhaps a reminder to be "green" and protect the environment by not printing the e-mail. In addition, disclaimers are likely to include a number of warnings, such as the e-mail could contain viruses and the recipient is responsible for guarding against them, the recipient should not rely on any professional advice contained in the e-mail, and the e-mail does not constitute a contractual offer or acceptance.
Are All E-Mail Disclaimers Enforceable?
Relatively few cases have dealt with the issue of whether e-mail disclaimers are enforceable, and the court decisions have not yet answered the question of enforceability. Another issue is whether e-mails with no disclaimers are less protected than ones without them.
One issue that can easily arise is whether a series of e-mails creates a contract. Although e-mails may seem to impose a contractual obligation between the sender and the recipient, the courts generally deem unilateral contracts unenforceable. Thus, a disclaimer stating that an e-mail is not intended as an offer or an acceptance might be useful. The disclaimer should be carefully worded, however.
A court in Scotland, for example, held that an e-mail disclaimer did not extend to a detailed proposal attached to the e-mail. Therefore, the attached proposal was deemed a valid offer.
As disclaimers are added to more and more e-mails, the less likely it is that a judge will be convinced that e-mails with disclaimers are more privileged or confidential than others. In addition, making the disclaimers longer does not guarantee that the e-mails to which the disclaimers are attached will be considered more privileged and confidential than others.
In 2012, for instance, the investment bank Nomura Group attached a nearly three-thousand-word disclaimer to a Federal Reserve report that it had e-mailed to its clients. One phrase in the disclaimer stated that the opinions expressed in the e-mail were subject to change without notice.
One commentator likened e-mail disclaimers to the tags on new mattresses that forbid removal of the tags under penalty of law or to twenty-page booklets on safety that accompany new products. No one reads the tags or the booklets, and no one cares. Why do e-mail disclaimers continue to proliferate nonetheless and become ever longer?