The Confidentiality Notices
At the dawn of the email age it was widely predicted that emails would seldom be used by business people to communicate confidential information on the grounds of that medium's inherent lack of security. Like many predictions, that one proved incorrect, for it has become perfectly normal for emails to be used as the medium by which even highly confidential business information is transmitted. It follows that it is often considered to be highly advisable for emails automatically to contain an express notice of confidentiality. The advantage of this tactic is that, if in a worst case scenario a confidential email reaches the wrong addressee, the inclusion in it of an express confidentiality notice may well make it significantly easier for its sender to be entitled to take legal action against the recipient. This is because of the legal rule that, in order to be able to succeed in an action for breach of confidence, the claimant must be able to show that amongst other things "the information must have been communicated in circumstances importing an obligation of confidence" (Coco v Clark, 1969). If therefore you can point to a confidentiality notice included in your email, it could well give you a firmer basis on which to seek to stop the recipient from disclosing its contents, and/or to recover damages for breach of confidence. It should however be noted that this is not a failsafe tactic: there has yet been no English decision on point, and it would be open to a court to decline to grant relief for breach of confidence even if a confidentiality notice had been included in the email.
With regard to the content of the confidentiality notice, there is no prescribed wording, but a typical formula would be to state that the contents of the email are or may be confidential to the intended addressee, and to request any unintended recipient of it to delete it without copying, using or disclosing it, and to notify the sender as soon as possible. Specific legal advice should be sought on the text of the notice.
With regard to the location of the notice, it is obviously preferable for confidentiality notices to be positioned at the head rather than at the foot of the email, so that any unintended recipient will be fixed with notice of its confidentiality before – not after – reading its contents.
Disclaimers
In contrast to the inclusion in an email of a confidentiality notice, which may make it easier for the sender to bring a claim, the inclusion of a disclaimer may make it easier for the sender to raise a defence. The nature and scope of this disclaimer will obviously depend on the sender's type of business, but one fairly common type of disclaimer that will apply to many businesses seeks to warn the recipient that, because email is a method of communication that is subject to possible data corruption, the recipient should double-check with the sender any important information contained in it before relying upon it.
Another type of indirect disclaimer that may be appropriate to a consultancy would be to state that any advice or opinion contained in emails sent to clients is subject to its standard terms and conditions of business, which should themselves contain a clause that disclaims or limits liability in specified circumstances. However, as with confidentiality notices in emails, we still lack English judicial decisions on email disclaimers, and, in the absence of such authority, there is no guarantee that any given disclaimer would be upheld. In order to increase the chances of such disclaimers being legally enforceable legal advice should be taken on its wording.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
