E-mail confidential.

Media criticism.
June 1 2004 6:42 PM

E-mail Confidential

Who's afraid of Time Inc.'s legal disclaimer?

The other day, a Time Inc. journalist of my acquaintance sent me an e-mail from his corporate e-mail account. I read it quickly and was about to hit the delete icon when I spotted this extraordinary 114-word "disclaimer" sloshing around at the bottom. It read:

This message is the property of Time Inc. or its affiliates. It may be legally privileged and/or confidential and is intended only for the use of the addressee(s). No addressee should forward, print, copy, or otherwise reproduce this message in any manner that would allow it to be viewed by any individual not originally listed as a recipient. If the reader of this message is not the intended recipient, you are hereby notified that any unauthorized disclosure, dissemination, distribution, copying or the taking of any action in reliance on the information herein is strictly prohibited. If you have received this communication in error, please immediately notify the sender and delete this message.

Thank you.

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Ignoring the e-mail's threats, I forwarded it to my 175-pound Samoan attorney for his opinion, and he convinced me that Time Inc. has much more to fear from me than I have to fear from Time Inc. In fine Socratic fashion, my counsel walked me through the disclaimer, sentence by sentence, encouraging me to add my own thinking to our exercise. Here are my notes.

This message is the property of Time Inc. or its affiliates.

My attorney noted that it's probably true in the technical sense that an e-mail message from one of its employees sent via Time Inc.'s e-mail system is Time Inc.'s property. For that reason, Time Inc. employees should probably use their personal e-mail accounts for personal notes.

But sending me an e-mail—like sending a letter—creates an implied license for certain uses. What sort of uses? Surely I have the right to delete it or to print it for my records. I know of nothing in U.S. law that would bar me from sharing it with my friends or even quoting the message in print. Of course, there are limits to what one can do with e-mail or other correspondence. U.S. copyright law gives every letter and laundry list automatic copyright protection, so if you published a slew of e-mail from a correspondent and he sued you alleging copyright infringement, a court might find that you deprived him of the financial rewards of his literary labors and render a decision against you. But I doubt very much if that's going to apply to one in a billion e-mails.

The first sentence of the Time Inc. disclaimer also got me to thinking: If the message is Time Inc.'s corporate "property," what is it doing in my in-box without an invitation? Trespassing?

It may be legally privileged and/or confidential and is intended only for the use of the addressee(s).

Or it may not be, as my attorney noted. Correspondence between an attorney and his client is usually considered "legally privileged," but an e-mail from a Time Inc. wage slave to me? Not automatically. If the message is privileged or confidential, shouldn't Time Inc. let me know and not leave me dangling with the vague "may be" language? And when the disclaimer declares the message is "intended only for the use of the addressee(s)," to what "use" is it referring? Reading and burning it?

No addressee should forward, print, copy, or otherwise reproduce this message in any manner that would allow it to be viewed by any individual not originally listed as a recipient.

Note the operative word, "should." My attorney says this is nothing more than a request—only a fool would consider it a binding contract.

If the reader of this message is not the intended recipient, you are hereby notified that any unauthorized disclosure, dissemination, distribution, copying or the taking of any action in reliance on the information herein is strictly prohibited.

My Samoan attorney says Time Inc. might have a case if the message contained a trade secret intended for a recipient other than me and I distributed it. But sending a confidential or valuable message via insecure e-mail is a funny way to preserve a secret. If Time Inc. wants to keep its communications safe, it should invest in some sort of encryption software that allows privileged readers to open the mail but prevents them from forwarding, printing, or otherwise duplicating it. Microsoft, which publishes Slate, even makes a product for such occasions.

If you have received this communication in error, please immediately notify the sender and delete this message.

This, too, is only a request. (See above.)

The oddest thing about the Time Inc. disclaimer isn't its dubious legal language, but its placement at the bottom of the e-mail message. It's one thing to ask a correspondent to agree to terms of confidentiality before they read the message, but to dictate the terms afterwards? Ridiculous! If you really want to get the goat of a Time Inc. journalist, send him some extraordinary dish about your company via e-mail but then type the Time Inc. disclaimer into the end, substituting your company's name for that of Time Inc.

As stupid as the Time Inc. disclaimer may be, they come a lot stupider. In 2001, the Register, a U.K. information technology Web site, enlisted its readers to gather the longest, most PC, and most incomprehensible disclaimers on the Internet.

******

After reading, please burn this Web posting and then send your most hilarious disclaimer to pressbox@hotmail.com. (E-mail may be quoted by name unless the writer stipulates otherwise.)

Jack Shafer was Slate's editor at large. You can follow him on Twitter or email him at Shafer.Reuters@gmail.com.

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