By “disclaimers”, I am actually referring to a very small sub-set: those on fax messages and now – more and more – on emails, which get longer and longer, and are directed at those who receive the message in error.
I was never really sure why the advent of the fax meant it was important to put this sort of disclaimer on messages. After all, snail mail gets miss-delivered, too. I suppose it is because snail mail is encased in an envelope, so the contents are only visible if the envelope is opened, which should only be done by the addressee
So, as faxes are open to all eyes, senders of faxes would incorporate more or less aggressive messages, warning anyone who was not the addressee not to read or act on it and instructing them to inform the sender and destroy the fax – as though the sender had either the right or the power to insist on an innocent recipient rectifying the sender’s own error.
I include my own version, which I hope is at least polite and reasonable:
THIS FAX IS CONFIDENTIAL
If you receive it by mistake, I apologise for my error:
Please telephone me to tell me and please then destroy this fax
Whether the disclaimer is of any use in this circumstances is open to debate. I think that the only time when it can be enforced is when one side in litigation mistakenly sends to the other side a document not intended for them; I understand that in those circumstances the court will prevent the recipient making use of the information it had received in error. In normal circumstances, though, I fear the disclaimer is a forlorn intent to “un-ring the bell”.
The disease of the lengthy (and often aggressive) disclaimer has, inevitably, spread to emails, with the added problem that there is no cost to the sender – though there is to the recipient – whatever the length or turgidity of the message. Lawyers being lawyers, and trying to cover all the possibilities, the disclaimers get ever longer, and the disease is caught by commercial organisations, too. A couple of examples:
A typical example from HSBC (made more poignant by the instruction to “Think before you print”) –
—————————————– SAVE PAPER – THINK BEFORE YOU PRINT! This E-mail is confidential. It may also be legally privileged. If you are not the addressee you may not copy, forward, disclose or use any part of it. If you have received this message in error, please delete it and all copies from your system and notify the sender immediately by return E-mail. Internet communications cannot be guaranteed to be timely secure, error or virus-free. The sender does not accept liability for any errors or omissions.
Another one – anonymous to protect client confidentiality –
This email and any files transmitted with it are confidential and for the use of the addressee only. Internet e-mails are not necessarily secure. XYZ Limited does not accept responsibility for changes made to this message after it was sent. It is the responsibility of the recipient to ensure that they are virus free and no responsibility is accepted by XYZ Limited for any loss or damage from receipt or use thereof.
Both place the responsibility – and, almost, the blame – on the recipient, accepting none themselves
The most egregious example I can find at present is –
XYZ plc (company number 0123456) is a company registered in England and Wales and has its registered office at [address]. Telephone [tel], FAX [fax]. Please note that telephone calls made to numbers operated by XYZ plcs may be recorded for quality and training purposes.
The statements and opinions expressed in this message are those of the author and therefore do not necessarily reflect those of XYZ plc or any member of the XYZ group of companies. XYZplc or any member of the XYZ group of companies does not take any responsibility or liability whatsoever for the views of the author.
This email message is confidential and may be legally privileged. If you are not the intended recipient you should not read, copy, distribute, disclose or otherwise use the information in this email, but should contact Enterprise Inns plc immediately and delete the message from your system. You should not use, print, copy the message or disclose its contents to anyone. XYZ plc and any member of the XYZ group of companies has the right lawfully to monitor and inspect messages between its employees and any third party
E-mail is subject to possible data corruption, is not secure, and its content does not necessarily represent the opinion of XYZplc group of companies.
No representation or warranty is made as to the accuracy or completeness of the information and no liability can be accepted for any loss arising from its use.
This e-mail and any attachments are not guaranteed to be free from so-called computer viruses and it is recommended that you check for such viruses before down-loading it to your computer equipment and no liability can be accepted in relation to such viruses. The XYZ plc group of companies does not accept liability for any corruption, interception, amendment, tampering or viruses occurring to this message in transit.
Can you offer any better (ie: worse) examples?
PS: Mind you, there is one disclaimer, by Ben Goldacre, that I think is great:
READ CAREFULLY. By reading this email, you agree, on behalf of your
employer, to release me from all obligations and waivers arising from
any and all NON-NEGOTIATED agreements, licenses, terms-of-service,
shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure,
non-compete and acceptable use policies (“BOGUS AGREEMENTS”) that I have
entered into with your employer, its partners, licensors, agents and
assigns, in perpetuity, without prejudice to my ongoing rights and
privileges. You further represent that you have the authority to release
me from any BOGUS AGREEMENTS on behalf of your employer. If you
are anything other than a friend or an institutional professional colleague and
you are writing to me about Bad Science stuff then it is reasonable to assume
that I might quote our discussion in my writing, usually anonymously.