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Issue Date: April 2003 (es)

The legality of e-mail disclaimers - will they stand up in court?

1 April 2003

These days it is almost a fashion statement to insert a so-called 'e-mail disclaimer' to outgoing company e-mail. However, questions are raised as to the legality and enforceability of these e-mail attachments. Buys Inc provides a few pointers:
1. E-mail disclaimers are valid and enforceable in terms of section 11(3) of the Electronic Communications and Transactions (ECT) Act 25 of 2002, if the disclaimer would have been noticed by a reasonable person and it is accessible in a form in which it may be read and saved by the reader.
2. Buys Inc advises that these documents should rather be referred to as 'E-Mail Legal Notices' as the disclaimer is just one of many issues that should be addressed.
3. E-Mail Legal Notices, if drafted and used correctly, could play a very important role in limiting a company's risks associated with the use of e-mail correspondence by employees.
4. Proper E-Mail Legal Notices should address the following issues (depending on the nature of the company):
a) confidentiality,
b) reservation of copyright in the message and attachments,
c) disclaimer,
d) non-liability if employees use the messages for non-company and/or illegal purposes,
e) the fact that the e-mail message may be intercepted and used by the employer,
f) governing law,
g) disputes to be referred to arbitration,
h) the issues required by Chapter 3 of the ECT Act and;
i) disclosure of the company's registration number, address and directors (as required by s. 171 of the Companies Act 61 of 1973); and
5. Some companies automatically copy the whole E-Mail Legal Notice into a website message - resulting in up to four pages of legal stuff associated with a one line e-mail! Section 11(3) of the ECT Act and the so-called 'ticket cases' allows companies to refer to their E-Mail Legal Notices as hyperlinks in an e-mail message. Note, however, that certain e-mail recipients do not have Internet access and therefore cannot merely click on the link to access the document - to address these cases Buys Inc suggests that companies should also include a telephone number where a copy of the document could be requested. For example: 'Please read our E-Mail Legal Notice by clicking here: or phone (021) 461 7387 should you fail to get access to the Notice. By reading and/or acting upon this e-mail message you are legally bound to the terms of the Notice.'
For more information contact Reinhardt Buys, Buys Inc Attorneys, 021 461 7387.

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