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Thread: Are email confidentiality notices binding?

  1. #1
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    Default 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. #2
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    Default 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.


  3. #3
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    Default Are email confidentiality notices binding?

    vralias-google@yahoo.com (Vadim Rapp) wrote in message
    news:<iccub0dpbgj2jmm94ba6cjigctsopm2br2@4ax.com>. ..
    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.


  4. #4
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    Default Are email confidentiality notices binding?

    "Vadim Rapp" <vralias-google@yahoo.com> wrote in message
    news:iccub0dpbgj2jmm94ba6cjigctsopm2br2@4ax.com...
    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.


  5. #5
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    Default 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.


  6. #6
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    Default Are email confidentiality notices binding?

    "Curtis CCR" <curtisccr@sbcglobal.net> wrote in
    misc.legal.moderated:
    vralias-google@yahoo.com (Vadim Rapp) wrote in messagenews:<iccub0dpbgj2jmm94ba6cjigctsopm2br2@4a 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


  7. #7
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    Default Are email confidentiality notices binding?

    Curtis CCR wrote:
    vralias-google@yahoo.com (Vadim Rapp) wrote in message news:<iccub0dpbgj2jmm94ba6cjigctsopm2br2@4ax.com>. ..
    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.


  8. #8
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    Default Are email confidentiality notices binding?

    Stan Brown wrote:
    "Curtis CCR" <curtisccr@sbcglobal.net> wrote
    vralias-google@yahoo.com (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


  9. #9
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    Default Are email confidentiality notices binding?

    Robert Bonomi wrote:
    Vadim Rapp <vralias-google@yahoo.com> 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


  10. #10
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    Default 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


  11. #11
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    Default Are email confidentiality notices binding?

    Seth Breidbart wrote:
    In article <usa9c05v7tjvqtk8513kk28phb9i28o9s4@4ax.com>, Arthur L. Rubin <ronnirubin@sprintmail.com> 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.


  12. #12
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    Default Are email confidentiality notices binding?

    Stan Brown <the_stan_brown@fastmail.fm> wrote in message
    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.)
    Don't use your lawnmower as hedge trimmer... Don't stick you hand in
    the garbage disposer...

    The things people have done... and sued for.

    I'll leave your disclaimer/warning intact. Good advice.
    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

  13. #13
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    Default Are email confidentiality notices binding?

    In article <c8ngc0llmebv4joe87kbedlt233k8s1vfe@4ax.com>,
    Arthur L. Rubin <ronnirubin@sprintmail.com> wrote:
    Seth Breidbart wrote:
    In article <usa9c05v7tjvqtk8513kk28phb9i28o9s4@4ax.com>, Arthur L. Rubin <ronnirubin@sprintmail.com> 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


  14. #14
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    Default Are email confidentiality notices binding?

    In article <fvomc0lc6ac8onhteoi4gs5h5sur73ghus@4ax.com>,
    Curtis CCR <curtisccr@sbcglobal.net> wrote:
    Stan Brown <the_stan_brown@fastmail.fm> wrote in message
    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.)
    Don't use your lawnmower as hedge trimmer... Don't stick you hand inthe garbage disposer...The things people have done... and sued for.
    The first of those is, as far as can be determined, an urban legend.

    I'm sure plenty of idiots have done the second; however, I haven't
    heard of any suing over it, much less successfully.

    Seth


  15. #15
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    Default Are email confidentiality notices binding?

    On Tue, 08 Jun 2004 11:00:59 -0400, Stuart Bronstein <spamtrap@lexregia.com>
    wrote:
    Robert Bonomi wrote:
    Vadim Rapp <vralias-google@yahoo.com> 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.


  16. #16
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    Default Are email confidentiality notices binding?

    ptsc wrote:
    Stuart Bronstein <spamtrap@lexregia.com>
    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


  17. #17
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    Default Are email confidentiality notices binding?

    On Sun, 20 Jun 2004 11:56:52 -0400, Stuart Bronstein <spamtrap@lexregia.com>
    wrote:
    ptsc wrote:
    Stuart Bronstein <spamtrap@lexregia.com>
    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.


  18. #18
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    Default Are email confidentiality notices binding?

    "Stuart Bronstein" <spamtrap@lexregia.com> wrote in
    misc.legal.moderated:
    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.
    As a general principle, I think the above is true. But has either
    specific question ever been adjudicated, (a) whether an e-mail sent
    by accident to third parties remains a trade secret if it carries
    this disclaimer or (b) whether it loses trade secret protection if
    it doesn't carry the disclaimer?

    I would guess that the analogy would be misdirected snail-mail. Does
    a company's trade secret lose that protection if a careless mail
    clerk puts a confidential document in the wrong envelope and it goes
    to a customer or, worse, to a competitor?

    --
    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


  19. #19
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    Default Are email confidentiality notices binding?

    "ptsc" <ptsc@nowhere.com> wrote in message
    news:vetgd0hd4i069genh5t6outeft9f228mov@4ax.com...
    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.
    You're arguing for a standard of strict liability: if you did it, you're
    responsible for the consequences. English/American law follows that
    principle only in a few special areas, such as damages caused by misuse of
    explosives, and statutory rape. In general, the law recognizes that
    accidents happen, and tries to distinguish between accidents caused in part
    by lack of care (negligence) and accidents which happened _despite_ the
    exercise of reasonable care.

    The eternal issue, of course, is how much care is "reasonable." Countless
    books have been written on that question, but in brief, the standard of care
    varies depending on a bunch of factors such as prevailing standards in the
    industry or profession, foreseeable consequences of an accident, probability
    of an accident, and capacity of the injured party to avoid or minimize
    injury.

    The bottom line is: yes, it is possible to accidentally send an e-mail to
    the wrong person and still be found to have exercised reasonable care; and
    no, it is not easy to define the conditions under which this will happen.
    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.
    Technically, you're absolutely correct. Legally, I think that prevailing
    practices would strongly influence the result.

    A court will almost never find an attorney (or a doctor, a plumber, or
    anyone else) negligent for failing to do something that a typical member of
    the same profession would not be likely to do in the same circumstances.

    In a world where security was well integrated with the Internet
    infrastructure, anyone communicating sensitive information would use it as a
    matter of course, and a person who did not use it would have great
    difficulty in establishing reasonable care. We don't live in that world yet.
    We live in a world where most attorneys don't even know what public key
    encryption is, much less how to use it, and I doubt that it would be much of
    an issue in this type of dispute.


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