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Trailers: Disclaimers

Ads can be annoying, but at least they have an easy-to-understand purpose: to make money for the advertiser. Some mail servers, particularly those used by employees of large organizations, append things to the end of their messages that can baffle anybody who seeks a logical purpose to everything. These are disclaimers.

Why Disclaimers?

These days, people sue one another about every conceivable thing. This makes people understandably apprehensive that they might end up on the receiving end of it, especially when they are managers of large companies or organizations which are big targets for lawsuits because of their "deep pockets". Lawyers prey on this Fear, Uncertainty and Doubt (FUD) by selling their consulting services advising companies on what to do to supposedly minimize liability risks. Since "management types" are often under intense pressure to "Don't just stand there, do something," and under these circumstances frequently think that doing something stupid is superior to doing nothing at all, they're good clients for legal consultants giving them elaborately legalistic stupid things to say and do, for a big fee. One product of this is the e-mail disclaimer.

Given that a company can conceivably get in trouble for all sorts of things an employee might possibly do with e-mail: sending defamatory or harrassing things (including jokes that offend some overly sensitive person), sending company secrets to a competitor, providing information for insider trading of the company's stock, sending an e-mail virus, and so on, managers are eager for any way they can either stop this from happening or cover their butts if it happens anyway. One thing they often do is make their mail servers append a long heap of legalese to every e-mail that passes through them, something like this:

IMPORTANT: This email is intended for the use of  the  individual
addressee(s)  named  above  and  may  contain information that is
confidential,  privileged  or  unsuitable  for  overly  sensitive
persons  with  low  self-esteem, no sense of humour or irrational
religious beliefs. If you are not  the  intended  recipient,  any
dissemination,  distribution  or  copying  of  this  email is not
authorised (either explicitly or implicitly) and  constitutes  an
irritating  social  faux  pas. Unless the word absquatulation has
been used in its correct context somewhere  other  than  in  this
warning, it does not have any legal or grammatical use and may be
ignored. No animals were  harmed  in  the  transmission  of  this
email,  although  the  yorkshire  terrier  next door is living on
borrowed time, let me tell you. Those of you with an overwhelming
fear  of  the unknown will be gratified to learn that there is no
hidden message revealed by reading  this  warning  backwards,  so
just ignore that Alert Notice from Microsoft: However, by pouring
a complete circle of salt around yourself and your  computer  you
can  ensure  that  no harm befalls you and your pets. If you have
received this email in error, please  add  some  nutmeg  and  egg
whites  and place it in a warm oven for 40 minutes. Whisk briefly
and   let    it    stand    for    2    hours    before    icing.

Actually, the above (as you've probably figured out) is a parody of such disclaimers; it's turned up on several sites that critique e-mail disclaimers, and I'm not sure who its original author is (they're probably British, given the spellings like "humour").

Why Not?

Real disclaimers, unfortunately, work out in practice to be just as silly as the fake one above. Usually one of the clauses says that you're not supposed to read the message if you're not the intended recipient. But by the time you've reached the disclaimer at the bottom, you've probably already read the message... so much for that. Other parts might claim that the contents of the message do not represent official policy of the organization they were sent from; but if this is attached to all of the organization's messages, it will be attached to ones which do announce official policy of the organization; so this clause becomes meaningless too. And when the disclaimer states that the contents of the message are confidential, this becomes very silly when it's appended to a message posted to a public mailing list. People who work for newspapers have noted that some press releases come to them by e-mail with disclaimers attached asserting their confidentiality!

At any rate, I don't believe that any precedents have developed in which the presence of such a disclaimer has offered any exemption from or lessening of liability when a company gets in trouble for something written in an e-mail message. Lawyers will admit this when pressed, but will go on to say, in the typical lawyerly way, that the lack of a precedent argues in favor of doing "the safe thing" and including the disclaimers anyway. I guess some people think they might be magic talismans that could ward off trouble. (Incidentally, "talismans" is the correct plural of "talisman"; while some might be tempted to say "talismen", that's not proper because the "man" at the end of the word isn't the English word "man" -- the word came to English through a convoluted journey through Greek, Arabic, and the Romance Languages.)

They may say, "Well, it does no harm, so why not include them?" I guess all the wasted bandwidth of appending the silly things isn't harmful. (When people aren't diligent in trimming their quotes, a message that's been replied to several times within the organization can wind up with multiple copies of the disclaimer trailing off the end!) I guess the ridicule they might get from sites that report on silly disclaimers (see links below) isn't, either. With the mindset of management types and lawyers, there probably won't be any way to talk them out of this silliness short of the emergence of a court case that actually imposes greater liability for somebody because of the presence of such a message.

Mailing List Trailers

I'll close the article by briefly mentioning one more category of message trailers: that of a mailing list. These don't actually fit cleanly in the categories of disclaimers, ads, or signatures, since they might contain elements of all of them. The list trailer is put in by the list server in accordance with the wishes of the list maintainer, and might include some sort of disclaimer (Opinions expressed on the Foobar Organization discussion list are those of the individuals expressing them, not of the Foobar Organization), an ad (This list discusses FooCorp products. To see some of the great FooCorp products for sale, go to www.foocorp.example!), or more useful information such as how to unsubscribe from the list. If you're a list maintainer, try to keep your list trailer short and sweet, since long-time regulars on the list will have to put up with it over and over. A list trailer will be added in addition to the individual sender's personal signature, and, if your list is on a free server like Yahoo Groups, the ads added by the provider. (The usual order is signature, then corporate disclaimer added by sender's server, then list trailer, then ads.) List maintainers also, unfortunately, have to face the fact that even if instructions on how to unsubscribe from the list are presented clearly in the footer of all messages, there will be a certain number of users unable to catch a clue no matter how often it's thrown them, and will still flood the list itself with unsubscribe attempts. Countermeasures such as programming the list server to reject messages with the word "unsubscribe" in them have the unfortunate effect of suppressing some legitimate discussion (e.g., technical discussion about the mechanics of list subscriptions), and sometimes force participants to use "creative" spellings like "un$ub$cr1b3", making them look like "l33t h@x0r" script kiddies.

Links

Stupid Email Disclaimers
Email Disclaimers (a site in favor of these things...)
Email Disclaimer FAQ
Email Disclaimer Awards 2001
Disclaimers-R-Us (blog)

Next: How to format quoted material when you reply to a message is the subject of intense debate. Here's an introduction to the issues involved, and a few tips about how to ensure your reply is easily readable and can be distinguished readily from your quotes of others' earlier messages.

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