Is the Confidentiality Disclaimer at the Bottom of an Email Legally Binding?

iStock/Mlenny
iStock/Mlenny

For most of us, a day doesn’t go by without receiving a notice that “This email and attached documents may contain confidential information” and that you’re not authorized to read it if you aren’t the intended recipient. Anyone who has ever received one of these has probably wondered: How legally binding are these boilerplates?

The answer is: not very—though that’s not the entire story.

It’s generally agreed by legal experts that the generic boilerplate at the end of many emails has no legal weight behind it. It’s attempting to create a contract, but for a contract to apply both parties need to agree, which doesn’t happen in this case. At best it may make people paranoid about sharing your email and have an effect that way, although not necessarily through the power of law.

One case followed a doctor looking into suing his employer. Perhaps foolishly, the doctor emailed his lawyer from his work email, meaning that the employer felt that any confidentiality had been waived by use of the work email. The doctor disagreed and went to court. Part of the case was that every email sent by the law firm had the same standard disclaimer, but on that point the court ruled “[the law firm’s] pro forma notice at the end of the e-mail is insufficient and not a reasonable precaution to protect its clients.”

And their scope can be limited. One famous case seeking a protective order involved an extremely threatening email that included lines such as “Your most determined, unstoppable, and visceral enemy,” ending with "DISCLAIMER: Not one word herein should be construed by anyone as meaning violent or threatening intentions, and instead the entire contents is to be taken by the strict literary meaning. There have not been, and will be any elucidated threats of violence or intent, either expressed or implied, within the entirety of this document.” The court was unimpressed, granting the protective order and explaining "You can't send documentation of both a threatening and harassing manner and then think that you can get away with that by simply putting a disclaimer on it."

SHOULD I HAVE ONE?

This is not to say it’s useless to put a disclaimer on your emails, particularly with professional correspondence. In 2011 a lawsuit dealt in part with whether a customer list was a confidential trade secret. To maintain a trade secret, you need to take “reasonable efforts” to protect it. And the court determined that for a slew of reasons this customer list didn’t qualify as a trade secret. One of the issues brought up by the judge—though by no means the only one—was that the customer lists were sent to the other party on multiple occasions, and “The emails contain no disclaimer about the confidentiality of the materials attached.” That’s not to say the sending party would have been protected had they included the disclaimer, but the lack of one was a knock against them.

Disclaimers can also protect against contracts being formed. In one case, a real estate investor contacted a bank to inquire about some properties for sale. They signed a negotiation agreement acknowledging that email messages wouldn’t be considered binding. Over email he then made an offer, the bank made a counteroffer, and the investor agreed. The officer at the bank, however, had a disclaimer explaining that any price or term mentioned was not binding until the executive management committee signed off. Eventually the bank declined the agreement and the investor sued arguing breach of contract. The court ultimately ruled “in light of the e-mail disclaimers and the negotiation agreement [the investor] signed, any belief he had that his e-mailed acceptance of the counteroffer had created a binding contract was unreasonable.”

SO WHAT TO DO?

If you want to make your disclaimers count, and have a fighting chance in court if the situation arises, experts have a few suggestions. According to the law firm Reid & Hellyer, “To maximize the chances that such a disclaimer might be found effective, it may be better practice to place it at the beginning, not the end, of an email. However, if one were to do that for all e-mails sent, one might wonder if one really meant for the disclaimer to apply. It might be better practice to use disclaimers sparingly to certain particular emails only, not to every email sent.” But it’s probably best not to count on it to get you out of a jam.

*Disclaimer: this is not intended as a substitute for legal advice. Please consult a lawyer first!

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How Is a Sunscreen's SPF Calculated?

Rawpixel/iStock via Getty Images
Rawpixel/iStock via Getty Images

I’m a pale person. A very pale person. Which means that during these hot summer months, I carry sunscreen with me at all times, and apply it liberally. But I’ve never really understood what those SPF numbers meant, so I asked some sun care to break it down for me—and to tell me how to best apply the stuff so that I can make it through the summer without looking like a lobster.

Soaking up the sun ... safely

SPF stands for Sun Protection Factor, and it indicates a sunscreen’s ability to block UVB rays. The concept was pioneered at the Coppertone Solar Research Center in 1972; in 1978, the FDA published an SPF method based on Coppertone’s system, according to Dr. David Leffell, chief of Dermatologic Surgery and Cutaneous Oncology at Yale.

The numbers themselves stand for the approximate measure of time a person who has applied the sunscreen can stay out in the sun without getting burned. Say you get burned after 20 minutes in the sun without sunscreen; if properly applied (and reapplied), SPF 30 will allow you to stay in the sun 30 times longer without burning than if you were wearing no protection at all. So, theoretically, you should have approximately 600 minutes, or 10 hours, in the sun. But it’s not an exact science because the amount of UV light that reaches us depends on a number of factors, including cloud cover, the time of day, and the reflection of UV rays off the ground, so it’s generally recommended that you reapply sunscreen every two hours (or even sooner).

What gives a sunscreen a higher SPF comes down to the product’s formulation. “It’s possible that an SPF 50 might contain slightly more of one or more sunscreen active ingredients to achieve that higher SPF,” Dr. Patricia Agin, president of Agin Suncare Consulting, says. “But it’s also possible that the SPF 50 might contain an additional active ingredient to help boost the SPF performance to SPF 50.”

No matter what SPF your sunscreen is, you’ll still get a burn if it’s not properly applied. So let’s go over how to do that.

How to apply sunscreen

First, make sure you have a water-resistant, broad spectrum sunscreen—which means that it protects against both UVB and UVA radiation—with an SPF of at least 30. “Typically, you don’t have to buy sunscreen that has an SPF higher than that unless you have very sun sensitive skin,” Leffell says. “That’s a very small percentage of the population.” (Redheads, people with light eyes, and those who turn pink after just a few minutes in the sun—you’ll want to load up on SPF above 30.)

Twenty minutes before you go out to the beach or the pool, begin to apply your sunscreen in an even coat. “Don’t apply it like icing on a cake,” Leffell says. “I see these patients and they’ve got the tops of their ears covered with thick, unevenly applied sunscreen, and that’s not a good sign.” Sunscreen sprays will easily give you that even coat you need.

Whether you’re using lotion or a spray, when it comes time to apply, Leffell recommends starting with your scalp and face, even if you plan on wearing a hat. “Make sure you’ve covered the ears and nose and under the eyes,” Leffell says. “Then, I would move down to the shoulders, and make sure that someone can apply the sunscreen on your back beyond the reach of your hands.”

Other areas that are important that you may forget to cover, but shouldn’t, are the tops of your feet, the backs of your hands, and your chest. “We see it all the time now—the v of the chest in women has become a socially and aesthetically huge issue when they are 50 and beyond. Because even though they can treat their faces with all sorts of cosmetics and procedures, the chest is much harder, and they are stuck with the face of a 40-year-old and the chest of a 60-year-old. You want to avoid that using sunscreen.”

Another important thing to keep in mind: Water-resistant doesn’t mean waterproof. “I always tell patients to reapply every couple of hours while you’re active outdoors," Leffell says, "and always reapply when you come out of the water or if you’ve been sweating a lot, regardless of whether the label says water resistant."

Determining whether or not you’ve succeeded in properly applying your sunscreen is easy: “You know you’re applying your sunscreen properly if, after the first time you’ve used it, you haven’t gotten a burn,” Leffell says.

Agin has a caveat, though: "It’s not a good idea to think of sunscreens only as a way to extend your time in the sun," she says. "One must also understand that even before becoming sunburned, your skin is receiving UV exposure that causes other damage to the skin. At the end of the 600 minutes, you will have accrued enough UV to cause a sunburn—one Minimal Erythema Dose or MED—but there is pre-MED damage done to skin cells’ DNA and to the skin’s supporting structure of collagen and elastin that is not visible and happens even before you sunburn. These types of damage can occur without sunburning. So you can’t measure all the damage done to your skin by only being concerned about sunburn."

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An earlier version of this post ran in 2014.

What's the Difference Between Ice Cream and Gelato?

iStock/Getty Images/zoff-photo
iStock/Getty Images/zoff-photo

'Tis the season for beach reads, tan lines, and ice-cold desserts. You know it's summer when going to the local ice cream or gelato shop becomes part of your daily routine. But, what exactly is the difference between these two frozen treats?

One of the key differences between the two is butterfat. While ice cream's main ingredients include milk, cream, sugar, and egg yolks, the secret to making gelato is to use much less cream and sometimes little to no egg yolk. This leads to a much smaller percentage of butterfat in gelato. The FDA rules say that ice cream cannot contain less than 10 percent milkfat (though it can go as high as 25 percent) while gelato, much like soft serve, stays in the 4- to 9-percent range.

The churning method for both also differs, which affects the treat's density. Ice cream is churned at a much faster pace, leading to more air being whipped into the mixture. Ice cream's higher butterfat content comes into play here—due to all of that milkfat, the mix absorbs the air more readily. Gelato, on the other hand, is churned at a slower pace and absorbs far less air, creating a much denser dessert.

You also might have noticed that the serving style for the two treats aren't the same, either. In order to get those perfectly stacked ice cream scoops on a cone, buckets of ice cream must be stored at around 0°F to maintain its consistency, while the softer gelato is stored at a warmer 10°F to 22°F. Ice cream is then scooped into fairly uniform balls with the round ice cream scooper, whereas a spade or paddle is best for molding gelato into mound in a cup or a cone.

You can't really go wrong with either gelato or ice cream on a sweltering summer day, but there is one more difference to keep in mind while you debate which to get: taste. If you want a bolder flavor, you'll want to go with gelato. Because of the density of the cream and because there's less butterfat to coat your taste buds, gelato can seem to have more intensity to its flavors.

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