Email footers and the law

In deciding what to include in your standard email footers, there are two kinds of legal issue: what must be included; and what inclusions are desirable.  There are various distinct statutory requirements.  The main kinds of potentially desirable inclusions are email disclaimers and confidentiality notices.

Mandatory inclusions

Sections 349 to 351 of the Companies Act 1985 (as amended) require that the following information be included in business emails sent by a company:

  • the name of the company;
  • the registered office of the company;
  • the place of incorporation of the company; and
  • the registration number of the company.

In addition, “investment companies” must state in their emails that they are investment companies; and limited companies that are exempt from the obligation to use the word “limited” as part of their name must state that they are limited companies. The easiest way to ensure that this information is included in emails is, of course, to have it automatically inserted through a standard footer.

Please note that special rules apply (or may apply) which are beyond the scope of this note: where an email is sent for marketing purposes (whether solicited or unsolicited); in relation to emails sent by regulated industries and professions (e.g. the financial services industry or legal profession); and where you monitor the emails of employees and other personnel.

Email disclaimers

Many businesses include disclaimers of liability in their email footers. These may seek to exclude or limit the sender's liability in relation (amongst other things) to:

  • claims by third parties concerning the email;
  • malicious software transmitted with the email;
  • “accidental” contracting by junior staff;
  • negligent statements made in the email; and/or
  • other actionable email content.

The law relating to email disclaimers is not as clear as it might be.  However, what is clear is that very broad exclusions of liability will not usually protect the email sender in the event of a court case.  The kind of disclaimer appropriate to a particular business will depend upon the nature of that business (and the nature of the emails sent by that business).  For this reason, you should seek professional assistance to draft an email disclaimer.

Confidentiality notices

A second category of potentially desirable inclusion is a confidentiality statement.

A confidentiality notice will specify that the information contained in the email is (or may be) confidential, and may specify that the recipient of the email should not without the sender's permission disclose any confidential information received. Such notices serve to reinforce the obligations of individuals and companies under the general law of confidence. Arguably, it is better to include confidentiality notices at the top of an email, rather than in the footer – but for obvious reasons few businesses do this as a matter of course.

In any event, the law relating to email confidentiality notices is as uncertain as that relating to email disclaimers, and they should not be relied upon in relation to the disclosure of valuable confidential information (which should be covered by a confidentiality agreement or non-disclosure agreement of some kind).

Comments

It will be interesting to see if the law on email disclaimers develops differently in the UK, the EU, Asia and the US. We have a tradition of these in the US going back 20 years; while they are ubiquitous, most people deride them as unenforceable. In the US, they have some limited effect in constituting various forms of legal notice required by law or by contract compliance. (Although they themselves will not, obviously, operate as a contract to impose some kind of restriction or obligation on the recipient.) I wrote an article on the US implications on my blog (http://arborlaw.biz/blog/2007/07/19/legal-issues-in-email-disclaimers/) and I'll be interested in watching how this develops on the other side of the pond. Carol Shepherd, Attorney Arborlaw PLC

I have a slighty different email related question. I work for a Blue Chip company and want to know if it is a EU requirement to have email (as a channel of communication) option within the "Contact Us" section of a website.

You may well need to disclose an email address somewhere on the site, but there's no rule that says you have to do so on your contact page.  See: Website legal information: basic requirements.

Does the requirement to list company name and registration details in an email footer also include any requirement to list parent company and/or branches/subsidiaries which are registered elsewhere e.g. France/Germany?

Hi Tim - not to my knowledge.

Given that the Companies Act of 1985 makes no mention of emails, please can you identify where in the law the "business letters" requirements translate into emails?

The relevant amendments to the 1985 Act were in The Companies (Registrar, Languages and Trading Disclosures) Regulations 2006.

However, this question in now governed by The Companies (Trading Disclosures) Regulations 2008, made under the Companies Act 2006.

The interpretive provisions of the 2008 Regulations state (Section 1(2)(d)): "a reference to any type of document is a reference to a document of that type in hard copy, electronic or any other form". (I think this language was copied from the 2006 Regulations.)

Do these requirements also apply to open letters or blog postings on a company website? Or is it limited to only addressed letters and their electronic equivalant?

Some of the provisions of the Companies (Trading Disclosures) 2008 Regulations apply to company websites. See:

http://www.legislation.gov.uk/uksi/2008/495/made

The Electronic Commerce (EC Directive) Regulations 2002 also include disclosure requirements that apply to relevant websites ("Information Society Services").

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