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Comment by arcastroe | Hacker News Reader

The original email sent from Pixsy contained the following text, which the author ignored by publishing the email in entirety.

> PRIVATE AND CONFIDENTIAL. This e-mail, its contents, and attachments are private and confidential and is intended for the recipient only. Any disclosure, copying or unauthorized use of such information is prohibited.

Can someone with knowledge comment on this practice? Are these just empty words? Or is it legally enforceable to send an email and forbid "copying" or publishing/disclosing the contents?

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Unfortunately for them Cory Doctorow’s email signature is:

> READ CAREFULLY. By reading this email, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.

So if such signatures are enforceable then his signature is too, which nullifies the whole thing.

This signature is hilarious. It is the moral equivalent of "I'm rubber, you're glue..."

I may have to tweak my disclaimer in that direction too. Anywhere I deliberately list my contact details I always try to include text the effect that “Please note that any communication sent to these addresses/numbers will be accepted as a gift which I own and condo with anything I please, including but not limited to publicly publishing it and ridiculing you for my amusement should I feel the need or the want. If you are uncomfortable with this, feel free to refrain from contacting me. If you wish to negotiate some form of non-disclosure agreement, drop me a message stating just that, and I will ask my legal adviser to send you the relevant schedule of charges for the time that will require. Simply assuming such an agreement is in place, or unilaterally declaring one, in an email footer or elsewhere, is not sufficient.”.

> By reading this email, you agree

I'd assume that's unenforceable. You agree something by agreeing it, not just by reading the text of the agreement. How can you agree something you haven't yet finished reading?

See also: Every T&C page ever published.

100% agree - and that’s the whole point.

Anyone arguing that it is invalid and unenforceable is arguing to invalidate their own, equally unenforceable ‘private and confidential’ note at the bottom of their original emails.

Heads I win, tails you lose.

> Are these just empty words?

Yes. Without some kind of existing contract in place, they're meaningless.

> Or is it legally enforceable to send an email and forbid "copying" or publishing/disclosing the contents?

Only in extremely rare circumstances. It can be legally useful to put a note saying "Hey, this email contains trade secrets. If it was accidentally sent to you, you might want to think twice about further disseminating or selling these trade secrets." But the case law on this is quite weak, and putting the disclaimer on every email even if they don't contain trade secrets may be counter-productive by diluting the claim even in cases where it actually would apply. It's debatable but many legal scholars would assume similarly for a disclaimer on every single email saying "This is attorney-client privileged." unless maybe your business is a law firm.

In the USA, this law exists for physical mail:

https://about.usps.com/publications/pub300a/pub300a_v04_revi...

I'm not sure that it has been applied to email, but that would make for some very interesting cases. (Is Intellectual Property merchandise? Rights assigned to the content of the message?)

> Are these just empty words? Or is it legally enforceable

Neither. The purpose of this language isn’t to bind the recipient; it’s to guard against claims that the sender waived privilege.

> “inadvertent disclosure” of privileged material does not operate as a waiver so long as (i) the privilege holder took “reasonable steps to prevent disclosure”; and (ii) the privilege holder took “reasonable steps to rectify the error.”

https://www.americanbar.org/groups/business_law/resources/bu...

That likely depends on where you are and what the content actually is. In Denmark where i am located, it would definitely not apply in most cases. Of course, if you are a lawyer communicating with your client it would be protected, but that would be the case even without the disclaimer.

> Are these just empty words?

If you send me an unsolicited email, you can't bind me legally by appending a stack of demands and requirements. Much the same would apply to printed correspondence sent by post. I am not bound by your demands unless I have signed a contract with you to that effect. Random lawyers can't impose conditions on me just by writing to me.

So yes, they're empty words, like a lot of what lawyers write.

/me not a lawyer.

I once got an email that had a disclaimer informing me I could not make decisions based off its contents. Even if I was the intended recipient

Not a lawyer but it doesn’t look like any legal claim to me. They’re just telling you what they prohibit. I prohibit you from saying “balderdash”, but if you still do there’s not much I can do about it but stomp and pout.

To add to what reaperman said about no existing contract: I can't just send a random stranger an email saying "you agree to give me 50$". There is no existing legal relationship to make that claim.

IANAL. However I find that with law, you can just imagine how sociopaths would abuse a system. If you don't see that happening, then that's not how the system works.

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