You know those emails you get that have the disclaimers at the bottom that say the email and attachments are intended solely for the addressee to the email and is confidential, and any use, dissemination, copying or storage of the message or attachments is prohibited?
Yes, that’s right, those disclaimers.
Are you barred under the law from in fact using, disseminating, copying or storing the email or its attachments when you get an email with such warning?
Unless you already have an agreement with the sender to not disseminate the info in a sender’s emails (or are otherwise bound by law to keep communications confidential, such as between lawyers and their clients or doctors and their patients), you are not bound to its disclaimer of confidentiality.
Having no pre-existing agreement with the sender to keep email information from the sender confidential, the mere fact that you click to open the errant email you got does not create an agreement of confidentiality with the sender.
With no agreement to confidentiality, there is thus no duty owed to the sender to not pass on the info to other parties just because of the disclaimer.
There might be circumstances where you have an agreement to not disseminate info you got emailed and you don’t realize it. That is most commonly where you are an employee.
Emails between management and employees or co-employees which contain confidential company business, might be emails you are obligated to not disclose.
Employees often have a general fiduciary duty to their employers to not disclose things about their employer that are protected. This may include the employer’s trade secrets, financial information or general business operations. Employers often have rules and regulations with their employees for copying, using or disseminating particular info to unauthorized parties. You may have agreed to those rules as a condition of your employment at the time you agreed to become employed.
Many businesses may include, or require their employees to include, such confidentiality warnings in their emails. The purpose of advising that the email is confidential is businesses’ desperate attempt to protect themselves.
For example, trade secret law requires the owner of the trade secret to use reasonable effort to protect the secret. Risk-adverse lawyers thus advise their business clients to put that useless language in their emails. Doesn’t hurt.
Or does it? When you see confidentiality warnings in every email that comes from every business, it becomes the proverbial Boy Who Cried Wolf — dulling the sensitivity to such disclaimer. If the warning is that important or effective, you’d think businesses would put that “footer” at the start of the email instead of its end.
If the confidential info was inadvertently sent to someone not bound to keep the email confidential, the sender may be in a world of legal trouble regardless of email warnings since that proverbial horse is now out of the proverbial barn.
Any use, dissemination, copying or storage of the worn proverbs used in this column is not intended to be confidential, and such use, dissemination, copying or storage of said worn proverbs can be useful when drafting an unimaginative, inartful and inane column — like this one is.
But that’s a little writing technique we’ll keep confidential between us.
Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.