“The sobering reality is, however, that the validity of these disclaimers have not yet been tested by our courts and most businesses draft and implement their disclaimers in such a way that they are invalid, unenforceable and useless.“
So, what to do? The answer lies in why you would use an email disclaimer in the first place:
“The main purpose of e-mail disclaimers is to i) ensure legal compliance, ii) manage and mitigate the various risks associated with e-mail use and iii) to practice good corporate governance.
Various statutory provisions require e-mail compliance: Section 171 of the Companies Act 61 of 1973 requires companies to state the names and surnames of directors and their nationality, “trade catalogue, trade circular or business letter bearing the company’s name, irrespective of whether it is in electronic or any other format”.
Section 59(1)(c) requires every company to “have its name and registration number mentioned in legible characters in all notices and other official publications of the company, including notices or other official publications in electronic format”. Failure to include the required corporate information in business e-mails is a punishable offence.
Notwithstanding the legal compliance required from business e-mails, as stated above, the use of e-mail may result in significant legal risk, liability and harm to a business’ reputation.”
Another reason for an email disclaimer is as a tool to help you limit your potential liability if your email causes someone else to suffer some form of harm. An obvious example is if you send an email enclosing a virus. Email disclaimers act, in part, like the disclaimers you see when you park in a public parking area or when you stay at a hotel. There is a long line of cases colloquially called “ticket cases” which basically enforce these types of disclaimers provided they comply with certain basic requirements (for example, they are drawn to your attention). The challenge with email disclaimers is that these disclaimers are often placed automatically at the very bottom of your email and this begs the question whether the very existence of the email disclaimer was brought to the recipient’s attention.
As Buys puts it, this is a bit like “placing a ‘Park at your own risk’ sign at the exit of a public parking garage”. To address this issue, place your email disclaimer as close to the top of your email as you can. Ideally it should be at the very top of your email. At the very least, set your email program to place the disclaimer immediately below your latest email.
Section of the Electronic Communications and Transactions Act 25 of 2002 provides as follows:
“Legal requirements for data messages
11. (1) Information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message.
(2) Information is not without legal force and effect merely on the grounds that it is not contained in the data message purporting to give rise to such legal force and effect, but is merely referred to in such data message.
(3) Information incorporated into an agreement and that is not in the public domain is regarded as having been incorporated into a data message if such information is referred to in a way in which a reasonable person would have noticed the reference thereto and incorporation thereof; and
b. accessible in a form in which it may be read, stored and retrieved by the other party, whether electronically or as a computer printout as long as such information is reasonably capable of being reduced to electronic form by the party incorporating it.“
The importance of this section is that it means that simply because a disclaimer is set out in an email or on a website, that fact alone does not detract from its enforceability. Digital contracts are as binding as contracts on paper or entered into orally.
Don’t fool yourself into believing that these types of disclaimers are not binding on you, even if the disclaimer in question contains a hyperlink to a disclaimer hosted on a website or available on request. Although our courts have not had to decide this question yet, they will likely apply the principles distilled from the “ticket cases” when enforcing them.