eMails Gone Astray: Legal Relevance of Disclaimers

Millions of emails swoosh through the Internet per day often they contain confidential items, which is only meant to be read by the intended recipient. Private eMails come to the wrong person usually might lead to an embarrassment but business secrets… The auto-complete function of email programs cannot differ between typos and the correct person. So, how to prevent misuse of eMails?

Even more persons have started to add disclaimers as footers to their eMails. Are they of any use? Do they bind the real recipient not to misuse the accidentally received information? Disclaimers are used with the goal to prevent this.

It is absurd to write that you are not allowed to read the eMail you just noticed in your inbox. Seen purely technically, also you are the recipient, otherwise you would have not received the eMail at all. Furthermore, in most you cases you will only know that the mail has not been meant for you after reading it. A culpable conduct can never be seen in just reading any eMail in your own and personal inbox. Following §202a StGB, spying out data is subject to punishment. However, you did not illegally obtain the data; it was sent to you in result of a mistake from the sender. Nothing else holds, if the sender has a Trojan virus on his computer, he should be using antivirus software.

But what are these disclaimers aiming at then? They vainly try to create the contractual duty of secrecy (§311 BGB). However understandable the wish may be, a contract requires a consensus from but sides. If only party of a contract says, you have a contract with him, without you having agreed to anything, law will consider this as an offer, which you can accept or not – just as you wish. Relating to the disclaimer, this means if you do not expressly promise to keep silent, you have no obligation to do so.

Sometimes you will read that copying violates Copyright Law (= Urheberrecht). That will be usually not the case. A protection following copyright law will only be if the email has a creative height and “Susi, I love you.” or “Let’s get into business and meet in that bar.” will never suffice. What will constitute as worthy of protection will be text requiring some kind of experience in an independent form. However, such emails actually do not need a disclaimer because the law protects creations once they exist. There is no registration necessary or possible.

For special professions like physicians, attorneys, notaries, tax advisors, public officers have the legal obligation to secrecy. Breach of secrecy will be punished with prison up to two years or punishment in money (§203 StGB). However, if you mistakenly received such confidential eMail then you are not subject to punishment.

eMail disclaimers only have a frightening or informatory effect. In some cases, eMails will be protected without an explicit disclaimer. This will be the case if you would infringe the right of personality (Art. 2 I GG) or the privacy of posts (Art. 10 I GG). When you will infringe somebody’s right of personality? The most common example if you reveal touchy details of somebody, especially public figures. You will be infringing the privacy of posts if you pass on emails that are not meant for you.





Published on the old CMS: 2007/2/16
Read on the old CMS till November 2008: 933 reads