We are often asked what legal disclosures does the law require us to include in our email disclaimer – the legal content often found in the footer (at the foot) of an email or on a website (also commonly referred to as a “disclaimer” or “legal notice”). It is an easy thing to comply with and also easy for a regulator to check whether you comply. Legal disclosures are important because with so many emails being sent if you do not have them, you are publicising your non-compliance each time you send an email. Whilst the law requires only certain things to be in your emails, there are many other things you might choose to include in your email footer (like branding, contact details or statements about many other legal issues).
What are email disclaimers?
They are legal disclosures from the email sender, often “disclaiming liability for various statements made in the message” or a hyperlink to it. Not only are disclaimers necessary on emails, but also on SMSs, instant messages (IMs) and posts to social media platforms. For this reason, we prefer referring to message disclaimers. With Facebook and Twitter, we sometimes recommend that as part of its social media legal strategy, the company inserts a link into its profile, which links to a page on the company’s website containing the relevant disclaimer. Regarding SMSs and IMs, this is more difficult; the main reason being the practical limitations of space within a small message size.
How we can help
- Learn more about email disclaimers by buying our Email Compliance Guide.
- Check that your email disclaimer complies with the law byasking us to do a quick complementary review of your existing disclaimer.
- Have a message disclaimer that manages your risks and complies with the law by asking us to draft one for your specific organisation.
Legal disclosures required
So, does the law impose any specific requirements for disclaimers? Yes, in terms of the Consumer Protection Act, the Companies Act, the Close Corporations Act, and the ECT Act.
- Section 32(4) of the Companies Act 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 such notices and publications in electronic format as contemplated in the Electronic Communications and Transactions Act…” (our underlining).
- Section 23(1)(b) of the Close Corporations Act requires every corporation to “display its registered full name (or a registered literal translation thereof into anyone other official languages of the Republic) and registration number…in all notices and other official publications of the corporation, including notices or other official publications in electronic format” (our underlining). In addition, the name of every member must be displayed. This is in terms of section 41(1) of the Act which says that “A corporation shall not issue or send to any person any business letter, whether in electronic or any other format, bearing a registered name of the corporation, unless the forenames (or the initials) and surname of every member thereof are stated thereon” (our underlining). To not done so, can result in a fine or imprisonment in terms of section 82.
- Section 79(2)(a)-(c) of the Consumer Protection Act require all suppliers to “include the following particulars on any…business letter (business email) …: (a) The name, title or description under which the business is carried on; (b) a statement of the primary place at which, or from which, the business is carried on; and (c) if the activity is carried on under a business name, the name of the person to whom that business name is registered.
- The ECT Act requires various information to be on a website if electronic transactions are taking place on the website.
Summary of legal requirements
- Company name and
- Registration number
Close Corporations (CC)
- CC name
- Registration number, and
- Name or initials of every member
Both Company and Close Corporation
- Name, title or description under which the business is carried on (including a “trading as” business name, if applicable).
- (Address) – statement of the primary place (address) at which (e.g. selling physical goods), or from which (e.g. selling online goods), the business is carried on.
- If the activity is carried on under a business name, the name of the person to whom that business name is registered.