Have email disclaimers been tested in court?

Question

Every company these days has the standard confidentiality disclaimer at the bottom of their email signature. However, researching this online reveals that their effectiveness is somewhat dubious. My question is: Has the legality and power of email disclaimers ever been tested in court, anywhere in the world?

Answer 1

For one example, see the treatment by the Saskatchewan Office of the Information and Privacy Commissioner. Financial and Consumer Affairs Authority of Saskatchewan (Re), 2014 CanLII 3995 (SK IPC):

With regards to such automatic email confidentiality notices, I considered these in Review Report F-2012-003 and found that depending on the wording and content, these confidentiality clauses could pass the ‘in confidence’ test.

The disclaimer clause, at the end of several emails in the record before me, is worded similarly as the one I considered in the above Review Report. It is a more legalistic disclaimer than the usual confidentiality clause found at the end of general emails.

Therefore, I find that this would indicate that the communication was intended to be confidential and would meet the third part of the test for section 22(a) of FOIP.

Here is an example from the context of a purported settlement offer. Langley (Township) v. Witschel, 2015 BCSC 123:

The cases in this area are fact-specific. The approach ... requires that the communication as a whole be considered. ...

While the location and font of the disclaimer in the present case does leave the impression that it is automatically generated, I do not see that this means the language must necessarily be ignored. It depends on the situation. If the disclaimer directly contradicts the substance of the email and has been used in a multitude of communications between these parties regardless of their purpose, then the overall impression left on a reasonable person may well be that the disclaimer language is to be ignored in favour of the substantive message, ... .

In the case at bar I do not have any evidence showing a use of the disclaimer in communications between these parties that is so automatic, and perhaps inappropriate in some instances, that I should conclude it is meaningless language. ...

... When the email as a whole is considered, including the disclaimer, I conclude that a reasonable person would find that it was not an acknowledgement of any liability.

My review of the case law confirms that these disclaimers of all sorts are not generally determinative. Instead, they can be evidence of intention that a communication be in confidence (or without prejudice, etc.). The weight of that evidence depends on the precise context and wording. And other evidence might pull in the other direction.

The signifiance of a document being sent in confidence will depend on the legal issue. Confidence can be relevant for:

• claims of privilege, especially case-by-case privilege
• certain defamation defences
• government disclosure obligations under freedom-of-information statutes
• adherence to professional standards
• etc.

Disclaimers more generally can be relevant for:

• admission of liability
• whether a settlement offer is "without prejudice"
• etc.