An email arrives in your Inbox. You read the message (but don't print it off unless you absolutely have to - because that saves trees) and usually ignore all that lovely text at the bottom, which usually starts something like "this email and all files transmitted with it..." So what’s the point of it?
I often get asked about email footers and the requirements for providing information in web sites and emails. It’s an area that is often the subject of debate, because the applicable laws come from many different sources. But the long and the short of it is that there is certain information that you must include in all business emails; certain information that you may want to consider as standard; and certain information that you may require depending on the circumstances.
Information You Must Include:
The law has changed recently: companies must now disclose their full name, registered address and registration number in all websites, letters, order forms, notices and other official publications relating to the business of the company - including emails. For email, putting this information as a footer to your standard email template will suffice. For websites, it makes sense to update your ‘terms and conditions’, ‘about us’ or ‘contact’ pages.
Information You May Want to Consider as Standard:
These are the kind of things you might normally expect to be included as a subject header or in the main body. But it has become common to include them in the email footer ‘just in case’.
There is some uncertainty as to the enforceability of these notices and disclaimers: some argue that since the information has already been disclosed by the time they’re read, it’s not possible to impose any obligations after the event. There are arguments both ways, but what I would say is that as a policy of best practice it is better to have a notice than to have nothing.
Confidentiality notices, intended to remind or notify the recipient that the information disclosed in the email may be confidential, are a good example of this. They’re particularly useful if the email falls into the wrong hands – in which case it may be an idea to add that the email is for the intended recipient only.
You may also find that you are negotiating deals through email. In those cases it can be sensible to head the email "subject to contract" so that you aren't deemed to be entering into an agreement through email when in fact you intend there to be further negotiation. But in the event that you forget to include it in the subject header or main body, an email footer can be the next best thing.
Sending emails have their own inherent risks – the attachments may have viruses and there may be technical problems such as email going astray. So you can also include a disclaimer to try to limit your liability for these things.
Information You May Need Depending on the Circumstances:
The E-Commerce Regulations, introduced in 2002, deal specifically (but not exclusively) with ‘commercial communications’ – broadly, anything designed to promote the goods, services or image of a business. Their effect is that any business sending an email (or similar) for marketing purposes must include at least their name, their email and geographic address, the particulars of their regulator and whether it is solicited or unsolicited. The email must clearly identify that it is email marketing, who sent it, the terms involved, and the nature of the promotional offer. In addition, any individual receiving unsolicited commercial communications must be clearly identifiable as such (e.g. in the subject header). And those involved in email marketing must regularly consult and respect any opt-out registers such as the E-mail Preference Service scheme.
This is something you therefore need to consider quite aside from the commonly-asked question of whether you actually have permission to send unsolicited marketing emails - which is a topic for another day…
Alex is a partner with Sheridans and a leading lawyer in the interactive and digital media industries. He has first hand knowledge of the digital and interactive media and games industries as part of development teams on a number of successful projects before taking up the law, and he now acts for a wide variety of clients.