The Art of Crafting an Effective Digital Communication Disclaimer ➲ "Keep it Simple"!

3/9/2021

Essential Business Documents

The Art of Crafting an Effective Digital Communication Disclaimer ➲ "Keep it Simple"!

This article is about the art of crafting an effective digital communication disclaimer by balancing the need to "Keep it Simple" v. the need to have coverage for as many possible legal issues ... if there is too much focus solely on the legal side you could end with a large block of text that is TL;DR!

Contents

✅ Mind the Gaps

1️⃣ Covering the Possibility of Inadvertent Recipients

🌊 Blue Ocean Law Group's Alternative Solution

2️⃣ Covering an inappropriate email / message / tweet / social media post sent from your Employee

3️⃣ Covering Confidentiality

4️⃣ Covering Privacy

5️⃣ Covering Hacking + Viruses

6️⃣ Covering Contracts

7️⃣ Covering Compliance

8️⃣ Covering Cyber-Fraud

9️⃣ Covering Copyright + IP Protection

👨‍💻Technology-enabled email Signature + Disclaimer Solutions

✅ Mind the Gaps

When you stop to reflect upon your business digital communications you will discover that some categories fall outside the protection provided from your existing formal legal agreements.

Below are some examples to assist your analysis:

🧩 A preliminary exchange of emails/messages with a prospective employee, contractor, client or customer prior to entering into any formal legal agreements;

🧩 Matters which arise outside of the scope of the contractual arrangements you have in place with existing employees, contractors, clients or customers;

🧩 Accidental or inadvertent email/message communication;

🧩 Emails/messages with adverse parties outside of contract, or after a contract breach pending litigation or dispute resolution. To help cover this gap please read our blog article: How to cast a magic legal spell? The protection afforded by without prejudice settlement negotiations.

Think of Digital Communication Disclaimers as a Line of Defence rather than a Bulletproof Solution …

Have you ever heard of a business suing for breach of or to enforce a uni-lateral contract created solely by their email/messaging disclaimer?

If you have please let us know!

It is more likely that an email/messaging disclaimer has simply operated to avert a potential issue or helped as part of a larger course of dealings which together operate to form the basis of a legal action.

Some Protection is Better than None!

There are a number of reasons to use an email/messaging disclaimer, including but not limited to the following:

⚖️ Setting a professional tone;

⚖️ Branding;

⚖️ Set out what recipients can and cannot do with the email/message;

⚖️ Limit your legal responsibility;

⚖️ Aim to protect against a confidentiality breach;

⚖️ Mitigate liability for computer viruses;

⚖️ Set your contractual intentions;

⚖️ Ensure compliance with your business' legal obligations;

⚖️ Fraud warning; and

⚖️ IP protection.

Keep it Simple

The acronym TL;DR which stands for "too long; didn't read" is the most apt way to illustrate the need to "Keep it Simple"!

If your email/messaging disclaimer is not read by anyone, on its own, it is unlikely to provide any real protection.

Thinking Like a Lawyer

It should be noted that if your email/messaging disclaimer seeks to cover every possible issue which might arise it could end up being a large block of text that is too long to be easily read and understood much less applied with any predictability.

Crafting your Effective Digital Communication Disclaimer

1️⃣ Covering the Possibility of Inadvertent Recipients

Consider the worst case situation where you send one of your business emails/messages inadvertently into the wrong hands...

For the purposes of this example, assume that the mistake is discovered in time to take follow up action.

If so, there might not be any alternative means to contact the inadvertent recipient other than a follow-up email/message.

If the follow up email/message obtains no response or if the mistake is not discovered, what is more important?

1️⃣ That the recipient can quickly and easily understand what they can and cannot do with the email/message; or

2️⃣ Having an email/messaging disclaimer which covers everything but is not likely to be read in full, much less applied!

Many email/messaging disclaimers include a statement such as the following:

If you are not the intended recipient, you are required to delete this email/message and any copies, and notify us immediately.

The disclaimer may also state that:

Any reliance on the information in this email/message is at the recipient’s risk.

When seeking to cover this risk, many email/messaging disclaimers adopt a small font and state the following:

Intended only for use by its Intended Recipients. If you are not the Intended Recipient, any dissemination, copying or use of the information is strictly prohibited.

🌊 Blue Ocean Law Group's Alternative Solution

At Blue Ocean Law Group we use military-grade email encryption to keep our clients' personal information safe.

Using advanced email / messaging encryption technology enables us to:

1️⃣ Automatically place restrictions on what can be done with our email / messages after they have been delivered; and if required

2️⃣ Delete an inadvertently sent email / message after it has been delivered.

Therefore, our email / messaging disclaimer does not need to expressly deal with Inadvertent Recipients.

Instead we can take a clear + conspicuous "easy to notice" approach focused only on Intended Recipients:

✅ We have adopted a large + clear font (for visibility); and

✅ Kept the message simple.

Our objective is focused on maximising the potential for achieving compliance by the Intended Recipient.

This email / message is confidential and subject to Legal Professional Privilege.

We submit that our approach (supported by technology) increases the chance that the Intended Recipient will actually be placed on notice that the email / message is confidential + subject to protection by Legal Professional Privilege.

Therefore, the Intended Recipient they will be more likely to treat the email / message with the due care and respect which needs to be accorded to an email / message from a law firm.

2️⃣ Covering an inappropriate email / message / tweet / social media post sent from your Employee

As an employer, under the legal doctrine of Respondeat Superior you are generally liable for the acts of your employees made within the scope of their employment.

This includes their use of their company email / messaging / social media account.

In order to attempt to have your employee indemnify your liability in such a situation, we recommend you use our Employee Handbook which includes a policy on acceptable technology use by employees, incorporating email + messaging + social media use.

Further, we recommend you use our Employment Contract which requires that the employee complies with the policies in our Employee Handbook.

An email/messaging disclaimer alone is unlikely to be capable of disclaiming your liability for your employee’s unacceptable or inappropriate use of email / messaging / social media.

By way of example, an employer liability digital communication disclaimer may state the following:

If this is a personal email/message/tweet/post, any opinions or representations do not necessarily reflect the views of [insert your business name].

3️⃣ Covering Confidentiality

Your digital communication disclaimer can state that the email/message and any links/attachments contain privileged and/or confidential information.

You may also choose to include an express direction in your digital communication disclaimer, similar to the following:

You must not use, reproduce, copy or disclose this information other than for the purposes for which it was supplied.

Start by Declaring Confidentiality

We recommend that if you know your email/message contains confidential information it would be highly beneficial to include a declaration of confidentiality at the top of the digital communication.

Example:

Commercial in Confidence.

You may decide to provide the following instructions in your digital communication disclaimer for any Inadvertent Recipient:

If you have received this digital communication in error please delete it immediately and inform us by email on: ahoy@blueocean.law

4️⃣ Covering Privacy

When sending or receiving business digital communications, there is every chance that you will often need to deal with "Personal Information".

⚖️ Do you know whether your business exceeds the thresholds or has opted-in to be regulated by the privacy laws in Australia?

For assistance with this question, please read our blog article: Privacy Policies & Australian Law.

We do not recommend the practice of sending/collecting personal information via unencrypted digital communications, but if this is a possibility we recommend your digital communication disclaimer include a simple statement about privacy, similar to the following:

Any Personal information contained in digital communications with us is subject to our Privacy Policy.

5️⃣ Covering Hacking + Viruses

A digital communication disclaimer may also disclaim liability for hacking + computer viruses which may be contracted via any digital communication your business sends.

Your digital communication disclaimer could state something to the following effect:

Unless previously agreed otherwise the Recipient of this digital communication acknowledges that:
✅ There is a risk of a computer virus being transmitted via digital communications;
✅ The Recipient accepts full responsibility for scanning for and quarantining any such viruses; and
✅ The Recipient agrees that they will not claim any damage caused by any of the following:
🦠 Viruses; ❌ Interference; ❌ Interception; ❌ Data Corruption; or ❌ Unauthorised access.

Blue Ocean Law Group's military-grade email/messaging encryption software automatically tags our outgoing emails with an Anti-Virus Protection message.

Our inbound emails automatically state the following:

This email has been scanned by Inbound Shield™.

6️⃣ Covering Contracts

When sending any business digital communication, you must be careful that your digital communication is not construed as forming an intention to create a legally binding contract.

Your consideration would include factors such as the content of the digital communication + whether it contains a signature?

To cover this legal risk you may decide to include in your digital communication disclaimer a statement such as the following:

This digital communication does not constitute a binding contract, unless it is expressly stated and agreed to form a binding contract.

7️⃣ Covering Compliance

Many businesses are regulated regarding how they interact with their clients, customers, etc. and are legally required to include certain information or make certain statements in their digital communications to ensure compliance with their legal obligations.

Example for Law Firms:

Limited liability by a scheme approved under Professional Standards Legislation.

8️⃣ Covering Cyber-Fraud

As the incidence of cyber-fraud is on the increase, you may want to place your clients on notice, and provide some specific instructions to reduce the likelihood that the recipient might fall prey to a scam/cyber-fraud digital communication purporting to advise vital information such as bank account details.

Your digital communication disclaimer could include a statement such as the following to help your client understand and recognise a phishing digital communication, attempting to copy your business branding, so that they are less likely to fall prey to the scam.

Simple Example:

Our policy is not to send or amend our bank account details using digital communications.

More elaborate example:

**FRAUD WARNING – Cyber Fraud is a major risk to Legal Firms.
Our Bank Account Details will never be changed during your transaction.
If you have been requested to pay money to any of our accounts, please check the details with us by phone.
We will not accept responsibility if you transfer money into the incorrect account**

Optional Independent Verification using TraxPrint Fraud Prevention Technology

Blue Ocean Law Group use TraxPrint Fraud Prevention Technology so that in addition to verbal confirmation, our clients can also independently verify our bank account details using the free TraxPrint app available for download for both iOS and Android mobile devices.

9️⃣ Covering Copyright + IP Protection

Your business can also use your digital communications disclaimer as an opportunity to ensure that it clearly & unequivocally claims copyright + Trademark / Servicemark protection over its brand and/or content or process related Intellectual Property.

👨‍💻 Technology-enabled email Signature + Disclaimer Solutions

Rather than leave the responsibility to update and set an email signature + disclaimer to individual employees or staff members within your business, it is possible to centrally manage this function.

These kinds of solutions enable the following advantages:

✅ Brand consistency;

✅ Risk management by automatically ensuring all emails are sent with the required disclaimer (this also makes the email signature or disclaimer tamper-proof);

✅ Time saving in that one change can be made which updates for all employees and staff who no longer need to be concerned with setting up or making changes to their email signatures; and

✅ Dynamic changes to all or part of the email signature or disclaimer, automatically triggered by keywords.

Some example central email signature and disclaimer solutions include:

CodeTwo; and

Parrot Digital (this service also offers assistance with the drafting of your email disclaimers).

Credits:

Cover image courtesy of Damir Spanic on Unsplash

This blog article was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This blog article is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.