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  • Are email confidentiality notices binding?

    Hello:

    Emails from companies often have "Confidentiality Notice", for
    example:

    ============
    Confidentiality Notice: The information contained in this message may
    be legally privileged and confidential information intended only for
    the use of the individual or entity named above. If the reader of this
    message is not the intended recipient, or the employee or agent
    responsible to deliver it to the intended recipient, you are hereby
    notified that any release, dissemination, distribution, or copying of
    this communication is strictly prohibited. If you have received this
    communication in error please notify the author immediately by
    replying to this message and deleting the original message. Thank you.
    ============

    I wonder, if this notice binding? If the reader had no prior relations
    with the sender, and indeed received the email in error, does he have
    to automatically agree to the above terms? If he does not agree to the
    terms and then releases, disseminates, etc. the message, can the
    sender go after him?


    Thanks


  • #2
    Are email confidentiality notices binding?

    I wonder, if this notice binding? If the reader had no prior relations with the sender, and indeed received the email in error, does he have to automatically agree to the above terms? If he does not agree to the terms and then releases, disseminates, etc. the message, can the sender go after him?
    I doubt they are binding in any court anywhere. They might be used to argue
    knowledge of improper release though, such as those situation where a well
    meaning attorney inadvertently discloses confidential information, but even
    then probably not successfully. I have never heard of anyone winning
    anything from it. The general consensus though is that they *might* help,
    and since the investment is negligible why not use them.

    Comment


    • #3
      Are email confidentiality notices binding?

      [email protected] (Vadim Rapp) wrote in message
      news:<[email protected]>. ..
      Hello: Emails from companies often have "Confidentiality Notice", for example:
      ============ Confidentiality Notice: The information contained in this message may be legally privileged and confidential information...
      <snip>

      Not a lawyer - I just want to take a stab at this. We have these
      avaiable to append to our e-mails, but I have never heard a definite
      opinion on their "enforceability" from our legal people.
      I wonder, if this notice binding?
      Probably depends. How's that for a definite guess?
      If the reader had no prior relations with the sender, and indeed received the email in error, does he have to automatically agree to the above terms?
      He might be bound to the general terms of the notice, even if the
      notice was not there. I consider the one that gets appended to my
      e-mails as a reminder to think carefully before doing something with
      information you weren't supposed to get. (I can delete the notice
      from my e-mails before I hit send as it is part of the sig file. My
      wife's employer's e-mail systems appends a similar notice to e-mail as
      it is sent)

      It as much for people you know, as people you don't. If you and I
      work for the same company and I accidently sent you personal
      information about another employee (say an HR matter), you are bound
      to keep it confidential.

      Heck, even if you don't work for the same company, I don't know you,
      and I just screwed up and managed to accidently get such information
      routed to you, you would have no right to use or disseminate the
      information to others. If you accidentally receive someone's medical
      records or something equally sensitive, you don't have a right to
      forward it to you joke-of-the-day distribution list.

      What if you were not the intended recipient of "insider" information
      about a company and traded stock on the information? That's still
      insider trading.

      You might be sharing proprietary information with someone that needs
      to be reminded that they should not share it with your competitors.
      For example, I share "proprietary" information with my customers from
      time to time. If your employer is party to a non-disclosure or
      confidentiality agreement with a supplier or customer, you wouldn't
      want to risk your job by violating that.
      If he does not agree to the terms and then releases, disseminates, etc. the message, can the sender go after him?
      Another definite answer. It depends. In many cases where the sender
      can go after the unauthorized recipient, it probably wouldn't matter
      if the notice was there or not.

      There are a few variations of the notice used in our company. The
      notice appended to my emails reads...

      This e-mail message, and any attached messages or files, may contain
      confidential or otherwise privileged information for appropriate use
      by the intended recipient(s). Any unauthorized use or disclosure of
      this information is prohibited and may result in criminal and/or civil
      liability. If you received this message in error, please permanently
      delete it from your system(s) and contact the sender. We apologize
      for any inconvenience caused by misaddressed or misdirected e-mail.

      Comment


      • #4
        Are email confidentiality notices binding?

        "Vadim Rapp" <[email protected]> wrote in message
        news:[email protected]
        Emails from companies often have "Confidentiality Notice"... I wonder, if this notice binding? If the reader had no prior relations with the sender, and indeed received the email in error, does he have to automatically agree to the above terms? If he does not agree to the terms and then releases, disseminates, etc. the message, can the sender go after him?
        I think not, but the real point of this type of notice is to strengthen the
        sender's position vis a vis the intended recipient is the message goes
        astray.

        One example: a confidential message is accidentally sent to a person who has
        no connection with the intended recipient except for a similar name. (I have
        received a few messages like this that were profoundly embarrassing,
        although they did not have potential legal consequences.) The intended
        recipient sues the sender for negligently disclosing confidential
        information. The notice provides some basis for arguing that the sender
        exercised reasonable care.

        Another example: a confidential message is intercepted by another employee
        of the same organization as the intended recipient. The interceptor is now
        on notice, and if he or she makes unauthorized use of the information,
        cannot claim to have done so innocently.

        Comment


        • #5
          Are email confidentiality notices binding?

          On Thu, 03 Jun 2004 10:12:54 -0400, Vadim Rapp wrote:
          I wonder, if this notice binding? If the reader had no prior relations with the sender, and indeed received the email in error, does he have to automatically agree to the above terms? If he does not agree to the terms and then releases, disseminates, etc. the message, can the sender go after him?
          See
          http://slate.msn.com/id/2101561/

          --
          Do you want to increase American Outsourcing?
          Do you hate John Kerry? Do you want to see
          Dubya invade Syria and Iran Next? Vote for
          Ralph Nader, India needs your job.

          Comment


          • #6
            Are email confidentiality notices binding?

            "Curtis CCR" <[email protected]> wrote in
            misc.legal.moderated:
            [email protected] (Vadim Rapp) wrote in messagenews:<[email protected] x.com>...
            Confidentiality Notice: The information contained in this message may be legally privileged and confidential information...
            <snip>Not a lawyer - I just want to take a stab at this. We have theseavaiable to append to our e-mails, but I have never heard a definiteopinion on their "enforceability" from our legal people.
            I like the term I heard in a different context: "cargo cult
            thinking".

            Huge amounts of legalistic gobbledy**** come from people trying to
            protect themselves against any imaginable contingency, whether it
            could actually occur or not, whether they would actually be harmed
            or not, whether such statements have any effect or not. This one is
            a perfect example.

            The bad news is that such things feed on each other: every time some
            new bit of mumbo-jumbo pops up, it spreads like wildfire. Now the
            first page of almost any appliance manual is a completely generic
            list of warnings that may or may not relate to that particular
            appliance; more than half the directions on any over-the-counter
            medication are generic warnings, including an instruction that you
            must follow instructions in using the product! Some lawyer told them
            to put that on the package, but it doesn't make anyone any safer and
            I find it incredibly difficult to believe it would actually shield
            the company from a lawsuit.

            This business of ever-growing cautions and disclaimers is just a
            hidden cost that drives up the price of everything but has no legal
            use. (I'm not talking about sensible and specific warnings, like not
            giving aspirin to kids with measles.)

            --
            If you e-mail me from a fake address, your fingers will drop off.

            I am not a lawyer; this is not legal advice. When you read anything
            legal on the net, always verify it on your own, in light of your
            particular circumstances. You may also need to consult a lawyer.

            Stan Brown, Oak Road Systems, Cortland County, New York, USA
            http://OakRoadSystems.com

            Comment


            • #7
              Are email confidentiality notices binding?

              Curtis CCR wrote:
              [email protected] (Vadim Rapp) wrote in message news:<[email protected]>. ..
              If the reader had no prior relations with the sender, and indeed received the email in error, does he have to automatically agree to the above terms?
              ....
              It as much for people you know, as people you don't. If you and I work for the same company and I accidently sent you personal information about another employee (say an HR matter), you are bound to keep it confidential.
              Agreed.
              Heck, even if you don't work for the same company, I don't know you, and I just screwed up and managed to accidently get such information routed to you, you would have no right to use or disseminate the information to others. If you accidentally receive someone's medical records or something equally sensitive, you don't have a right to forward it to you joke-of-the-day distribution list.
              I doubt that very much. You almost certainly DO have a right
              to forward it to the National Enquirer, or your joke-of-the-day
              distribution list.
              What if you were not the intended recipient of "insider" information about a company and traded stock on the information? That's still insider trading.
              Nope. It isn't.

              --
              This account is subject to a persistent MS Blaster and SWEN attack.
              I think I've got the problem resolved, but, if you E-mail me
              and it bounces, a second try might work.
              However, please reply in newsgroup.

              Comment


              • #8
                Are email confidentiality notices binding?

                Stan Brown wrote:
                "Curtis CCR" <[email protected]> wrote
                [email protected] (Vadim Rapp) wrote
                Confidentiality Notice: The information contained in this message maybe legally privileged and confidential information...
                <snip>Not a lawyer - I just want to take a stab at this. We have theseavaiable to append to our e-mails, but I have never heard a definiteopinion on their "enforceability" from our legal people.
                I like the term I heard in a different context: "cargo cult thinking". Huge amounts of legalistic gobbledy**** come from people trying to protect themselves against any imaginable contingency, whether it could actually occur or not, whether they would actually be harmed or not, whether such statements have any effect or not. This one is a perfect example.
                The purpose of the notice is that, when confidential material is
                leaked out it is no longer confidential. But if reasonable efforts
                are used to maintain confidentiality and the information gets out
                unintentionally, it may still be kept out of evidence in court.

                Stu

                Comment


                • #9
                  Are email confidentiality notices binding?

                  Robert Bonomi wrote:
                  Vadim Rapp <[email protected]> wrote:
                  Emails from companies often have "Confidentiality Notice",I wonder, if this notice binding? If the reader had no prior relationswith the sender, and indeed received the email in error, does he haveto automatically agree to the above terms? If he does not agree to theterms and then releases, disseminates, etc. the message, can thesender go after him?
                  It is an attempt at a 'contract of adhesion'. As such, it is invalid, and un-enforceable, as far as the actual recipient goes..
                  Contracts of adhesion are not per se invalid. In fact, most contracts
                  of adhesion are perfectly valid. They are only subject to rescission
                  or voidable to the extent they are unconscionable.

                  Stu

                  Comment


                  • #10
                    Are email confidentiality notices binding?

                    SB> The bad news is that such things feed on each other: every time some
                    SB> new bit of mumbo-jumbo pops up, it spreads like wildfire. Now the
                    SB> first page of almost any appliance manual is a completely generic
                    SB> list of warnings that may or may not relate to that particular
                    SB> appliance; more than half the directions on any over-the-counter
                    SB> medication are generic warnings, including an instruction that you
                    SB> must follow instructions in using the product! Some lawyer told them
                    SB> to put that on the package, but it doesn't make anyone any safer and
                    SB> I find it incredibly difficult to believe it would actually shield
                    SB> the company from a lawsuit.

                    My observations exactly. Looking at all these growing disclaimers, I'm
                    getting an impression that the general business of any enterprise is
                    narrowing down on one purpose: how to get away with what they did. They
                    definitely think that the main use consumers could make of their products,
                    is using them as an opportunity to sue. Maybe they have a point?

                    regards

                    Comment


                    • #11
                      Are email confidentiality notices binding?

                      Seth Breidbart wrote:
                      In article <[email protected]>, Arthur L. Rubin <[email protected]> wrote:
                      Curtis CCR wrote:
                      What if you were not the intended recipient of "insider" information about a company and traded stock on the information? That's still insider trading.Nope. It isn't. I think it is. How is it not acting on "material non-public information" (the definition of "insider trading")? The fact that you gained the information blamelessly is irrelevant.
                      How do you (the recipient) know it's non-public? The disclaimer?
                      If it was "accidentally" posted to a (public) Usenet newsgroup
                      or a large mailing list, it would THEN be public, regardless of
                      the disclaimer.

                      Comment


                      • #12
                        Are email confidentiality notices binding?

                        In article <[email protected]>,
                        Arthur L. Rubin <[email protected]> wrote:
                        Seth Breidbart wrote:
                        In article <[email protected]>, Arthur L. Rubin <[email protected]> wrote:
                        Curtis CCR wrote:
                        > What if you were not the intended recipient of "insider" information> about a company and traded stock on the information? That's still> insider trading.Nope. It isn't. I think it is. How is it not acting on "material non-public information" (the definition of "insider trading")? The fact that you gained the information blamelessly is irrelevant.
                        How do you (the recipient) know it's non-public? The disclaimer?
                        I don't think it matters whether or not you know (or believe) it to be
                        non-public, the issue is whether or not it _is_ non-public.
                        If it was "accidentally" posted to a (public) Usenet newsgroupor a large mailing list, it would THEN be public, regardless ofthe disclaimer.
                        True. Likewise if you read it in a newspaper or online newsfeed.

                        Seth

                        Comment


                        • #13
                          Are email confidentiality notices binding?

                          On Tue, 08 Jun 2004 11:00:59 -0400, Stuart Bronstein <[email protected]>
                          wrote:
                          Robert Bonomi wrote:
                          Vadim Rapp <[email protected]> wrote:
                          Emails from companies often have "Confidentiality Notice",I wonder, if this notice binding? If the reader had no prior relationswith the sender, and indeed received the email in error, does he haveto automatically agree to the above terms? If he does not agree to theterms and then releases, disseminates, etc. the message, can thesender go after him?
                          It is an attempt at a 'contract of adhesion'. As such, it is invalid, and un-enforceable, as far as the actual recipient goes..
                          Contracts of adhesion are not per se invalid. In fact, most contractsof adhesion are perfectly valid. They are only subject to rescissionor voidable to the extent they are unconscionable.
                          While that may be true, I don't see how the notice in question is a contract of
                          any kind, especially if the email is sent to a total stranger who hasn't agreed
                          to be bound by it. At most, it would provide notice of the nature of the
                          contents. Even so, it would be entirely reasonable for a person to disregard
                          such notice if it were clearly false, such as if they saw the material posted to
                          a public newsgroup.

                          Then it could have as many disclaimers stating confidentiality in as many ways
                          as is possible in the English language, but it would still not be confidential.

                          Comment


                          • #14
                            Are email confidentiality notices binding?

                            ptsc wrote:
                            Stuart Bronstein <[email protected]>
                            Contracts of adhesion are not per se invalid. In fact,most contracts of adhesion are perfectly valid. They areonly subject to rescission or voidable to the extentthey are unconscionable. While that may be true, I don't see how the notice in question is a contract of any kind, especially if the email is sent to a total stranger who hasn't agreed to be bound by it. At most, it would provide notice of the nature of the contents. Even so, it would be entirely reasonable for a person to disregard such notice if it were clearly false, such as if they saw the material posted to a public newsgroup.
                            The purpose of a confidentiality statement in an email is not to bind
                            the accidental recipient. It is to establish that the intent is to
                            keep it confidential and that reasonable means are being taken for
                            that purpose.

                            When all reasonable means are taken to keep information confidential
                            but it gets out anyway, some courts will not allow it in evidence at
                            trial, as if it were still confidential.

                            Stu

                            Comment


                            • #15
                              Are email confidentiality notices binding?

                              On Sun, 20 Jun 2004 11:56:52 -0400, Stuart Bronstein <[email protected]>
                              wrote:
                              ptsc wrote:
                              Stuart Bronstein <[email protected]>
                              Contracts of adhesion are not per se invalid. In fact,most contracts of adhesion are perfectly valid. They areonly subject to rescission or voidable to the extentthey are unconscionable.
                              While that may be true, I don't see how the notice in question is a contract of any kind, especially if the email is sent to a total stranger who hasn't agreed to be bound by it. At most, it would provide notice of the nature of the contents. Even so, it would be entirely reasonable for a person to disregard such notice if it were clearly false, such as if they saw the material posted to a public newsgroup.
                              The purpose of a confidentiality statement in an email is not to bindthe accidental recipient. It is to establish that the intent is tokeep it confidential and that reasonable means are being taken forthat purpose.
                              I find it difficult to reconcile the concept of reasonable means being taken
                              to preserve confidentiality with an actual practice that consists of emailing
                              it to the wrong person. Perhaps if it is emailed to the correct email address,
                              but for some reason, the wrong person has access to the account, and
                              there was no reason to think that this would happen, but if something is
                              sent to an entirely incorrect email address, or to an email address that
                              there was no reason to believe was still valid, I think that might defeat
                              a presumption of reasonable means being taken.
                              When all reasonable means are taken to keep information confidentialbut it gets out anyway, some courts will not allow it in evidence attrial, as if it were still confidential.
                              Personally, I don't think sending stuff out via unencrypted email is consistent
                              with "all reasonable means," any more than writing it on a postcard and
                              stamping "confidential" on the postcard is a reasonable way of preserving
                              confidentiality.

                              Comment

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