It is an all too familiar sight to see emails ended with a lengthy disclaimer, often in tiny text, and if the email thread is very long, it could be repeated multiple times making the thread incredibly (and unnecessarily) long. A common alternative to this is to simply include a link at the bottom of the email which links to a website that contains the disclaimer. This solution is quite elegant as it keep the email short, and you do not have a wall of tiny text after each email.
However it appears that email disclaimers that are incorporated into an email via a link are illegal (at least in Europe, and more specifically the UK) according to a recent opinion done for the LITIG. The opinion argues that it is illegal because a variety of codes, declarations and acts that govern email communication in the United Kingdom and Europe, require that certain information (and legal disclaimers) be stored in a ‘permanent’ location. The opinion further argues that a static webpage, independent of the email does not meet this requirement for a variety of reasons including that the webpage could go offline, change or be pulled down.
What does this mean for South African companies and users? The short answer, not much, while South Africa does have a few laws regarding emails none of them would make hyper-linking a disclaimer to an email illegal.
The opinion does raise some very interesting points on the suitability of this practice however. For example, what if the user wishes to read the disclaimer, but is offline or due to company policies following the link may not be possible? The legal disclaimer in these circumstances will be rendered useless. With these considerations in mind, and if South Africa follows the trend set overseas, we may see new laws coming into effect which would also make the practice illegal.
So what are the alternatives ? One solution is to simply attach the terms to the first email (and then reference to them in the actual mail). This is quite a neat solution as it does away with the ‘wall of text’ problem, but also meets the requirements of having a permanent copy of the disclaimer available with the email at all times. However it does raise the problem of having to attach a document to every mail you send. Another alternative (and one that is considered by the opinion) is to reduce the length of the email disclaimer to its absolute minimum by having only the essential elements of the disclaimer present. While this solution appears to be the best, some may find a ‘watered-down’ disclaimer not to their tastes and would rather stick the wall of tiny text.
