Q. My company is considering adding a confidentiality notice to our e-mail messages to cover situations in which an unintended person receives our company e-mail. Does this provide any protection?
A. E-mail disclaimer notices have become ubiquitous, even though the legal effect of such notices is questionable. Many companies use confidentiality disclaimers to address the all-too-common problem of misdirected e-mail.
Although the unintended recipient is not obligated to not read, delete or otherwise take actions as directed by an e-mail disclaimer, the fact that the e-mail carries such a request might cause the person to do as directed anyway. At least, it provides some additional grounds for requesting the recipient to comply.
These types of disclaimers may also be useful in identifying information that your company considers confidential, which may be subject to confidentiality obligations with certain parties anyway.
If confidential information in an e-mail was disclosed in violation of a nondisclosure obligation, the disclaimer would be evidence that the information was considered confidential by your company and was subject to the nondisclosure agreement.
Of course, if every e-mail has the disclaimer, the other party could argue that the disclaimer should not be interpreted that way. There is little case law dealing with this issue, and it appears that many companies are choosing to play it safe and use a disclaimer.