Dear Rich: I have a question. I get a lot of emails that have disclaimers at the end like "This email and any files transmitted with it are confidential, etc. ... " Should my business include one of those disclaimers to protect our trade secrets? I'm so glad you asked. Feel free to use disclaimers but don't count on them to protect anything. Although there are no court cases to point to, the general consensus is that email disclaimers don't create a legally binding arrangement because the other party never agreed to the terms. (That's true even if you are a big megacorp like Time, Inc.) If something confidential is accidentally transmitted, a court will be more concerned with the contents of the email, the choice of recipient (that is, your existing relationship with the recipient), and the circumstances of the transmission. If you're concerned about protecting business trade secrets, avoid sending them in emails and take the time to create a basic trade secret protection program. Finally, the common placement of the disclaimer (at the end of the email) works against enforcement since disclaimers must be prominent (at the top of the email) to have any effect at all.
So why bother including one? It's mostly a matter of wishful thinking--that is, making a statement that an email is confidential may trick the recipient into believing it is confidential. (Another reason to use them is in the hope that yours will enter the Stupid Email Disclaimer hall of fame.)
