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Thread: What's confidential or not - legally?

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    Moderator Kay is a Premium Member
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    What's confidential or not - legally?

    If I enquire about some business matter to a company and they respond with this in their email sig:

    Disclaimer: The Information in this e-mail and in any attachments is confidential and intended only for the addressee. If you are not the intended recipient, any disclosure, copying or distribution of this e-mail or any attachments is strictly prohibited.
    Am I bound by those terms? I can't see any reason why I would be. When I contacted them, I never made any undertaking to keep their response confidential. It's not as though you could even say there was any implicit agreement that I would keep any of the discussion confidential.

    Let me explain. Company XYZ has written some publicly available information (freely available to anyone who cares to look for it on the Internet). I asked for a couple of points of clarification. Fair enough, if that really is confidential info - I would treat it as such. But many companies have this kind of warning as a default in their sigs. Surely it can't have any legal meaning?

    The company has given appalling customer service, so I want to include the text of their email in an article along with the name of the sender (ie the company not the person). How can I be prohibited from doing so? I made no commitment to keep matters confidential. I never asked for any confidential information. If they thought the information was confidential, then why did they give it out willy-nilly to a complete stranger without asking for an NDA?

    I think it's just scare tactics so people daren't say anything about the appalling customer service they received via email.
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    Usual disclaimer for things like this - I'm not an attorney, you should seek one out, blah blah blah...

    I think you're right. It's just a preventative measure and I doubt it's legally binding, but I'm guessing that's going to be a local/regional thing. There's also the problem as to whether it's enforceable or not. Do they have the means and opportunity to really go after you?

    I think these types of disclaimers in emails are awfully silly. I know and am friends with some people that use disclaimers like this (I've used them myself in a previous life) and I just don't get it now...

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    Quote Originally Posted by Kay View Post
    Let me explain. Company XYZ has written some publicly available information (freely available to anyone who cares to look for it on the Internet).
    We all have websites with information that becomes publicly available once we write and publish it, but of course we retain rights and control over it. There's a lot of (free) information on the net, but it is automatically copyrighted just like emails. We publish to bring visitors, so we can promote products and services, monetize the information. You could probably get away with what is covered in EP forum rule 7, depending on how it is used. Proven facts, not opinion nor conjecture, still may result in a problem, but is defensible.

    This type of statement is typical in emails I receive from attorneys. The legal advice I've received is to pay attention to whether monetary values can be placed, and if loss can be documented. (This is different from slander and libel; For those, the act itself must be shown to be public but doesn't require the same financial loss documentation.) If use of their email or website contents (by a third party) has a proven cost to them, either in lost visitors or income (and they can show this to a court), or you have used their information to make money (offering a public product or service that either has a price or brings traffic to a monetized site), then they would have recourse. The next question then becomes, do they have the knowledge and resources to go after you.

    Not all website information can be quoted without a financial impact. Companies have become much more aggressive in protecting online reputations. The safest way to cover yourself if you're ever uncertain whether your actions carry consequence, just call your agent to be certain your cyber-liability policy covers what you are doing.
    Last edited by KenW3; 3 June 2014 at 8:16 am.

  5. #4
    Moderator Kay is a Premium Member
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    Thanks, Ken. But it's not as complicated as that. It's a B2C company. They have some information available online but it's a bit sketchy. I, as a consumer, asked them to clarify it. They sent a pretty useless response by email, and the email has the silly "confidential" thing in the footer.

    As a blogger, I want to write about my experience of dealing with this company. I see no reason why I shouldn't quote their customer service email response in its entirety, despite their claim that it's confidential. I think the "confidential" claim is pointless. If they were really imparting confidential information to me, then they should have asked me to sign an NDA or at least ask for a trust based reassurance that I would not divulge the details.

    I see no reason on earth why someone should send me information and expect me to be legally bound to confidentiality unless there was some understanding or agreement beforehand.

    Funnily enough, even since I started this thread, I've received another couple of emails (for my own sites) which are just routine correspondence and they have this same dire warning in their footers too. How can anyone take these seriously?

    Q: What flavours of ice cream do you sell?

    A: We sell vanilla, raspberry, and slug curry.
    Disclaimer: The Information in this e-mail and in any attachments is confidential and intended only for the addressee...

    It seems pointless, yet so many people do it. And I can't take it seriously.
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    Quote Originally Posted by Kay View Post
    Thanks, Ken. But it's not as complicated as that. It's a B2C company. They have some information available online but it's a bit sketchy. I, as a consumer, asked them to clarify it. They sent a pretty useless response by email, and the email has the silly "confidential" thing in the footer.
    Private email correspondence does not require a 'confidentiality' notice. It is a copyright owned by the sender.

    As your query was posted in the Business Management and Administration section of EP, I answered quite a bit differently than what would have been posted in the EP Foo section for an uncomplicated gripe thread about the use of disclaimers.

    Quote Originally Posted by Kay View Post
    The company has given appalling customer service
    This statement indicated intent to post a negative review. This is why I took the time, Kay, and went a bit more in-depth for response.

    I'm sure you have seen the recent lawsuit against Yelp for a bad review, lawsuits for bad eBay feedback, the problems Angie's List has faced when companies don't appreciate their reviews. Sometimes a company won't issue a C&D and will go straight to aggressive self-protection; As long as insurance is in place or the financial wherewithal exists to deal, then an opinion that
    Quote Originally Posted by Kay View Post
    It seems pointless, yet so many people do it. And I can't take it seriously.
    is fine.

    Taking disclaimers seriously is never a requirement; It's a personal choice which may or may never produce repercussion. You can Google 'email legal disclaimers' and read the results expressing protections provided to companies willing to enforce rights, but the statement
    Quote Originally Posted by Kay
    I see no reason why I shouldn't quote their customer service email response in its entirety
    seems to suggest that the desire to publish a review may be obfuscating the obvious copyright violation issue.

  7. #6
    Marketing Mentor Mikl is a Premium Member
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    Are we in danger of confusing confidentiality and copyright? They are not necessarily two sides of the same coin.

    I think it's obvious that the confidentiality statement has no legal force whatever. You can't be bound by that sort of condition unless it is part of some form of contract which you agreed to in advance. Clearly, it isn't, and you didn't.

    In any case, the clause is qualified by: "If you are not the intended recipient .... ". In this case, Kay, you clearly were the intended recipient, so that's another reason that it doesn't apply.

    This sort of statement is now very common in emails from large organisations, professional practices, government departments, and similar. Often, they not only say that the contents are confidential, but that, if you are not the intended recipient, you must notify the sender immediately, and delete the message and its attachments. Personally, I would just delete the thing without bothering to read it. I certainly wouldn't go to the trouble of contacting the sender.

    But copyright is a separate issue. There's no question that the copyright in the message belongs to the person (or firm) that created it. So if you were to re-publish it on a blog or in a forum post without the sender's permission, you could be held to be in breach of copyright. However, you might have a defence of "fair dealing" (called "fair usage" in some parts of the world). And in any case, it's unlikely they'd be able to claim much in the way of damages, even if an action for breach of copyright succeeded.

    Of course, there's nothing stopping you creating a blog entry or a forum post in which you describe the sender's response, but in your own words.

    Mike

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    Quote Originally Posted by Mikl View Post
    I think it's obvious that the confidentiality statement has no legal force whatever. You can't be bound by that sort of condition unless it is part of some form of contract which you agreed to in advance. Clearly, it isn't, and you didn't.
    At least in some jurisdictions, you CAN be liable for disclosing certain information. For example, under the Illinois Trade Secrets Act a person can be held liable for "misappropriation" of a trade secret. Without going into all the detail, "misappropriation" includes disclosure or use of a trade secret of a person without express or implied consent by someone who knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. You don't need to "agree" not to use the trade secret; the law binds you not to use it.

    It is important to note, however, that a "trade secret" is a narrower term than "confidential information." Not every bit of information that a business would like to protect rises to the level of a trade secret.

    The disclaimer may be enough to put the recipient on notice where a trade secret is inadvertently sent to the wrong recipient. It may satisfy the requirement that the recipient "knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake." It does not, hover, create a confidentiality agreement between the sender and the recipient nor does it turn non-trade secret material into trade secrets.

    Quote Originally Posted by Mikl View Post
    But copyright is a separate issue. There's no question that the copyright in the message belongs to the person (or firm) that created it. So if you were to re-publish it on a blog or in a forum post without the sender's permission, you could be held to be in breach of copyright.
    I agree. Just because someone sends you something to read does not mean it is yours to do with as you please. The writer still owns the copyright. If the use is not "fair use" (the term in the U.S. Copyright Act), then you can be liable for damages. In the U.S., because of the difficulty of proving actual monetary damages, a copyright owner is entitled to receive statutory damages without showing any actual damages. A copyright owner who can show willful infringement may be entitled to damages up to $150,000 per work.

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    Marketing Mentor Mikl is a Premium Member
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    Thanks for the clarification, David. Most interesting.

    Just out of curiosity, would the "misappropriation of a trade secret" be a criminal act in this context? In other words, could the person doing the misappropriating be prosecuted for it? Or would it be a civil matter?

    You mentioned statutory damages. We've discussed this before, if I remember right. I think you also mentioned "punitive damages" on one occasion. I get the impression that these are specifically American concepts. I've never heard of anything similar in any European context. What we have is the principle of equity: the concept of the plaintiff being awarded damages that would put him in the same position as he would have been in if whatever it was he was complaining about had not taken place - no more, no less.

    Needless to say, I'm not sure if the above is correct. As a one-time journalist, I am supposed to know about copyright and libel law. But unlike yourself, I am definitely not an expert.

    Mike

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    First, I appreciate the vote of confidence but I don't claim to be an expert either. It's an area that I have regular exposure to, particularly with clients with an online presence since that seems to be where much of the infringement occurs these days.

    The Illinois Trade Secret Act only provides for civil remedies. There are no criminal provisions in that act. However, there are criminal law that cover theft, including theft of trade secrets. Those are separate laws with separate definitions. In fact, the Illinois Trade Secret Act specifically states "This Act does not affect ... criminal remedies, whether or not based upon misappropriation of a trade secret ..."

    The concept of statutory damages in copyright is to provide a remedy for the many instances where proving any monetary damages would be difficult if not impossible. For example, if you are a professional photographer and hundreds of small websites simply steal your images, how could you possibly protect your rights if you had to prove actual damages in each case?

    The amounts of the statutory damages are intended to be compensatory, not punitive, though the fact that the minimum of $200 for even an innocent infringement might appear to be punitive to someone who had to pay it. The Copyright Act does not provide for punitive damages, though there have been a few cases where courts awarded punitive damages. That is pretty rare.

    As for statutory damages in other countries, a 2013 article Statutory Damages: A Rarity in Copyright Laws Internationally, But For How Long? said that only 24 of the 177 WIPO member states surveyed had provisions for statutory damages. The article listed: Azerbaijan, Bahamas, Bahrain, Belarus, Bulgaria, Canada, China, Costa Rica, Dominican Republican, Israel, Kazakhstan, Kyrgyzstan, Liberia, Lithuania, Malaysia, Morocco, Republic of Korea, Republic of Moldova, Russian Federation, Singapore, Sri Lanka, Ukraine, the United States, and Vietnam. The article is an interesting read if you are interested in the subject.

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