Disclaimer (at the top, where it makes sense): this page explains how things stand, with a focus on Italian and EU law, but it is not legal advice. Every statement has its source, listed at the bottom, so you can check them one by one.
Why everyone has one
"But everyone has one" is the first objection, and it is true: the footer disclaimer is everywhere, from small firms to multinationals. It just did not spread because it works.
- It spread by imitation. According to The Economist, companies started using it because they saw others doing so, not because a rule or a court asked for it.
- Often nobody chose it. It is usually added automatically by the company mail server. Someone set it up years ago and nobody has read it since.
- Being everywhere does not make it work. A thousand companies using it do not give it a legal value it does not have. The reasons are below.
- Precisely because everyone has one, nobody reads it. Back in 2011 The Economist noted that recipients had long stopped paying attention. A notice everyone ignores notifies no one.
- Those who studied it reached the opposite conclusion. In 2010 a group of large UK law firms (Litig) sought counsel's opinion on whether it could be dropped. The answer was that a few company details remain mandatory and the rest can be cut down drastically. If even lawyers are trying to get rid of it, "everyone has one" is not a good reason to keep it.
What a disclaimer usually says
They all sound alike. The message is confidential and intended only for the addressee. Anyone receiving it by mistake must notify the sender and delete it, and must not read, copy or share it. Then comes a reference to privacy law or the GDPR, and often a sentence excluding liability for viruses in attachments. Sometimes it runs to ten lines, sometimes in two languages.
Why they don't work
- One party cannot create an obligation on its own. Whoever receives an email has not signed a confidentiality agreement: the disclaimer asks something of them but does not bind them. In the EU, unfair terms imposed on a consumer without negotiation have no effect anyway (Directive 93/13/EEC).
- It arrives too late. It sits at the bottom of the message: by the time you read it, you have read everything else.
- The law applies anyway, notice or not. In Italy, article 616 of the Criminal Code also protects electronic correspondence. Someone who receives an email by mistake commits no offence by reading it, because the mistake is the sender's. Disclosing its content without just cause can be an offence, if it causes harm. Restating this in a footer adds nothing: everyone is presumed to know the law.
- No rule requires it. Neither the Italian Privacy Code (Legislative Decree 196/2003) nor the GDPR asks for a notice at the bottom of emails. The privacy notice under article 13 GDPR must be provided, but it does not need repeating in every message.
- Courts have not cared. In 2011 The Economist reported that, according to lawyers and internet policy experts, no case in the United States had ever turned on the presence or absence of an email disclaimer. In Scotland, in Baillie Estates v Du Pont, a court held that a contract had been concluded by email despite the standard footer.
And they do harm
- They make threads unreadable. Every reply carries the writer's disclaimer plus those of all previous messages. After a few exchanges a thread holds more legal notices than content.
- They teach people to skip the bottom of emails. Whoever gets the same ten lines under every message stops looking at them, including the useful information that sometimes sits right there.
- They give a false sense of security. A sentence declaring a message confidential does not protect it: sensitive content needs encryption or a document shared with controlled access.
- They devalue real confidentiality. If every email, even one booking lunch, declares itself confidential, the truly confidential one no longer stands out.
What actually matters
- Company details. Article 2250 of the Italian Civil Code requires companies to state in their correspondence the registered office, the companies register and registration number and, for S.p.A. and S.r.l., the paid-up share capital. It is the only part of the footer the law asks for, and often the part that is missing.
- A link to the privacy notice, explaining who processes the data of people who write to us, why and for how long.
If something is truly confidential, technology protects it, not a formula: an encrypted message, a shared document with controlled access, a check of the recipients before hitting Send.
If you received one of our emails by mistake
Let us know by replying or by writing to hello@cloudfactory.it, then delete it. We ask as a courtesy, not because a line at the bottom says so.
Frequently asked questions
Is an email disclaimer mandatory?
No. No Italian or EU rule requires one. What Italian companies must show is the information listed in article 2250 of the Civil Code: registered office, companies register and registration number, and for S.p.A. and S.r.l. the paid-up share capital.
Does the GDPR require a privacy notice in every email?
No. Article 13 GDPR requires informing people when their data is collected. A link to the privacy notice in the signature is the simplest way to keep it available.
If I receive an email by mistake, may I read it?
Under Italian law, reading it is not an offence, because the mistake is the sender's. Disclosing its content without just cause can be, if it causes harm (article 616 of the Criminal Code). This holds with or without a disclaimer. The right thing to do is to tell the sender and delete the message.
Does a disclaimer protect the sender from mistakes or infected attachments?
No. Liability depends on how the people involved behaved and on the security measures in place, not on a sentence that disclaims it in advance.
Can a disclaimer stop an email from forming an agreement?
Not necessarily. What counts is the content of the exchange: in the Scottish case Baillie Estates v Du Pont the court held that a contract had been concluded despite the standard footer.
If they don't work, why is everyone using them?
Imitation, as explained at the top of this page. In 2015 the British MP Alan Duncan even introduced a bill to ban long email disclaimers, which never became law.
Sources
- I disclaimer legali dentro le email non servono a niente, Il Post, 15 July 2019 (Italian)
- Valentina Frediani, Quei disclaimer intimidatori nell'email, Punto Informatico, 21 July 2005 (Italian)
- Spare us the e-mail yada-yada, The Economist, 9 April 2011
- Italian Criminal Code, article 616 (Italian)
- Italian Civil Code, article 2250 (Italian)
- Regulation (EU) 2016/679, article 13
- Directive 93/13/EEC on unfair terms in consumer contracts
- E-mail Disclaimers, Society for Computers and Law, 21 July 2010 (opinion for Litig)
- MP begs for bill banning email disclaimers, The Register, 8 January 2015, and the bill page on the UK Parliament website
- Email disclaimer, Wikipedia (Baillie Estates v Du Pont)
- Jeffrey Goldberg, Stupid email disclaimers, a collection of examples