Thursday, 7 January 2010

New Zealand legal bleg

Late last year, the University started attaching a disclaimer, copied below, to every outgoing email sent from a University account to a non-University account. I've not noticed it on email from any other university in New Zealand, and I can't recall ever having seen it on an academic email from outside of New Zealand. I have seen similar things attached to emails from some civil servants from various countries and on emails from some corporates.

I hate the email disclaimers. If you have an email exchange with somebody else who's stuck with a disclaimer, and it's a quick back and forth, the disclaimers take on an ever-increasing proportion of the sent mail (and shouldn't we be conserving electrons for our grandchildren to use?).

The questions: Has any company or agency in New Zealand ever gotten out of a legal mess by pointing out the existence of the disclaimer? Anywhere else? To what realistic legal risk is the University exposed in the absence of such a disclaimer? Does the law currently hold that any email sent from any random University employee can reasonably be held as constituting the official views of the University? That any employer, as an ISP for its employees, can be held liable if an email has a virus attached? Does the disclaimer's prohibition on dissemination by unintended recipients place any legal and enforceable obligation on them? If so, why can't I also demand that anyone reading an email from me owes me a fee of $1 for having read the email?

Here's the disclaimer:
All emails sent from the University of Canterbury may be confidential and subject to legal privilege. If you are not an intended recipient, you may not use, disseminate, distribute or reproduce such email, any attachments, or any part thereof. If you have received a message in error please notify the sender immediately and erase all copies of the message and any attachments. Any views expressed in any message are those of the individual sender and may not necessarily reflect the views of the University of Canterbury.

The University of Canterbury does not guarantee that any email or any attachments are free from computer viruses or other conditions which may damage or interfere with recipient data, hardware or software. The recipient relies on its own procedures and assumes all risk of use and of opening any attachments.
The second sentence says that, if I'm not the intended recipient of the email, I cannot do anything with the email. The third sentence says that I should notify the sender. But the second sentence says that I can't use the email. To reply to the email requires that I use the email, at least to manually transcribe the email address. All very perilous.

Disclaimer: Nothing in this blog posting should be read as bringing the University's reputation into disrepute. It is purely an academic question about the legal status of email disclaimers in New Zealand.


  1. The missus, who's a lawyer for a government department, have their emails marked with a similar disclaimer. However, they're doing it for a reason - the emails concerned sometimes have to be sent "without prejudice", or contain personal information subject to the Privacy Act or be exempt from the provisions of the OIA.

    For them, she says, it's defensible because sometimes communications can go astray or can be intercepted and the legal privilege has to be stated in those cases. If a private individual received an email from this particular department, they'd probably be very concerned anyway. Outside of that, she thinks they're pretty pointless and tend to appear as a sop to paranoid legal departments rather than carrying any weight.

  2. A lot of this type of stuff - privacy, confidential information, legal privilege, and so on, is not controlled by legislation.

    Instead it's common law, which means you and the person you're trying to prevent publishing that information (which is what this seems to be aimed at - think of that email to the Arabian girl at Auckland University which caused a scandal) go to court and argue over which result is fairer. Having a disclaimer like that could help your case because you can say that since it's there the other person should never have expected to be allowed to publish in the first place.

    Also damages are a lot higher for those types of torts when the wrong-doer is 'on notice' ie knew they shouldn't do it, so that might be another reason for the disclaimer.

    Usually courts dislike disclaimers, particularly broad ones like this. Sometimes they work, sometimes not, usually in line with what's 'fair'. It's not like the courts see the disclaimer and say "well, that's it then, we've got no part to play in this, might as well go home'. They assess the whole situation, or transaction, and all the circumstances and then decide what's fair.

    Bear in mind I have no practical experience with this, just a law degree from a provincial university, so I might be totally wrong. As to why I'm tapping this out at 1AM - your predictions regarding the amount of sleep I would get this summer have turned out to be all too true. Although it's been quiet for around ten minutes now, which hopefully means I can get some sleep too...

  3. Ok. So the upshot, then, is that because we might be emailing students about their results, which could be confidential, we do ourselves no harm (but very likely no good either) in having the boilerplate attached to all emails. It would be nice if the system only attached them in that case to emails to student accounts....