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Email Disclaimers - Are They Legally Binding?

Email disclaimers have become the norm for many businesses and organisations. We all tend to overlook them - but are they legally binding?

The Electronic Transactions Act 2002, Section 8, validates all electronically transmitted data/information and gives it the same standing as a written document. Arguably therefore there is no reason, in theory, why a properly constructed email disclaimer could not be legally enforceable. To increase the likelihood of legal enforceability, the disclaimer must be worded appropriately and must be practical in the sense that it is 'sufficiently drawn to the attention of the recipient'. Things to consider are the text size, font and placement/format of the disclaimer in the email. Placing a disclaimer at the top of an email rather than at the bottom is perhaps a better alternative.

Disclaimers are unlikely to have legal force unless they contain confidentiality obligations. The inclusion of confidentiality and legally privileged clauses is therefore highly recommended as it gives the disclaimer more weight by placing the reader 'on notice'. In situations where sensitive information is sent to the wrong recipient, a court order can be sought either demanding the recipient delete the email and/or prohibiting publication.

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