Geoff Sherrington has been drawing attention to some changes in the legal language attached to various emails and reports associated with the CSIRO and the Climate Adaptation Flagship (CAF). Since I have been posting up emails in an attempt to hold people accountable, I have been looking into the legality. In the case of reports, to what degree are the authors accountable for the accuracy of the contents? (Disclaimer: This post makes no representations or warranties regarding merchantability, fitness for purpose or otherwise with respect to the following assessment.)
DISCLAIMER (Email from Director Dr Andrew Ash, Sept 16 2008)
The information contained in the above e-mail message or messages (which includes any attachments) is Confidential / Commercial-in-confidence and may be legally privileged. It is intended only for the use of the person or entity to which it is addressed. If you are not the addressee any form of disclosure, copying, modification, distribution or any action taken or omitted in reliance on the information is unauthorised. If you received this communication in error, please notify the sender immediately and delete it from your computer system network.
This communication is intended for discussion purposes only and does not constitute a commitment by CSIRO to any agreement, memorandum of understanding, obligation, course of action or any other undertaking. Any transaction will be subject to contract and such contract will require approval in accordance with the Science and Industry Research Act, 1949. CSIRO will not be legally bound until these approvals are obtained.
On first reading you would think this prohibited publishing the email in blogs. However, as shown by the conditional emphasized, most of the terms are intended for a recipient other than the intended addressee. The prohibition on disclosure is therefore irrelevant to the recipient and doesn’t limit the them from doing anything they like with it, unless the sender were to claim that the email was not intended for the recipient. The advice I have received is that the language would NOT limit publication on a blog.
To correct this limitation, the CAF appears to have recently enlarged the scope of non-disclosure provisions in the following email, received by Geoff Sherrington.
DISCLAIMER: (14 Oct 2008, from James Davidson, Information Officer.)
This communication is for Discussion Purposes Only. It is not an agreement, memorandum of understanding, proposal, offer or the like, and is solely intended for informal discussion of ideas. For any agreement to be binding on CSIRO, it must be in writing, and executed on behalf of CSIRO by a person with proper authority, and in accordance with the Science and Industry Research Act 1949.
To the extent permitted by law, CSIRO does not represent, warrant and/or guarantee that the integrity of this communication has been maintained or that the communication is free from errors, virus, interception or interference.
The information contained in this email may be confidential or privileged. Any unauthorised use or disclosure is prohibited. If you have received this email in error, please accept my apologies and delete it immediately and please notify me.
Here, we are not told it is “Confidential / Commercial-in-confidence” but “may be confidential or privileged” and that “Any unauthorized use or disclosure is prohibited.”
First, what could constitute an “unauthorized use”? One would assume that permitted uses are spelled out in the first paragraph. That is, that use is authorized for “Discussion Purposes Only”. Unauthorized use would be for an “agreement, memorandum of understanding, proposal, offer or the like”.
So it seems that primarily what is prohibited is only using the email as a contract. This would be fair enough, as some people do send email as contracts. Clearly, normal emails are not contractual commitments, so it doesn’t apply to posting on a blog. However, the statement that “any disclosure is prohibited” would seem to contradict that, and be worrying.
Open to question is whether such a disclaimer would have any force without explicit agreement to terms and conditions by the addressee. Perhaps the next legal advance we may see from CSIRO CAF is a little button “I Agree” to click before we can open an email from them.
When we look at the the issue of accountability for a report, the Drought Exceptional Circumstances report (DECR) shows another expansion of scope. While the disclaimer in the DECR covered only CSIRO and BoM for “any liability for any opinion, advice and information”, and liability in the use of the information, it didn’t exclude the publishers of the report, the client organization DAFF.
CSIRO and the Bureau of Meteorology (BoM) make no representations or warranties regarding merchantability, fitness for purpose or otherwise with respect to this assessment. Any person relying on the assessment does so entirely at his or her own risk. CSIRO and the Bureau of Meteorology and all persons associated with it exclude all liability (including liability for negligence) in relation to any opinion, advice or information contained in this assessment, including, without limitation, any liability which is consequential on the use of such opinion, advice or information to the full extent of the law, including, without limitation, consequences arising as a result of action or inaction taken by that person or any third parties pursuant to reliance on the assessment.Where liability cannot be lawfully excluded, liability is limited, at the election of CSIRO and the Bureau of Meteorology, to the re-supply of the assessment or payment of the cost of re-supply of the assessmentl [sic].
The next report from CAF on the effect of global warming on fisheries covers the whole of the Australian Government. Whereas before there was “no liability for any opinion, advice and information”, this has been expanded to provide “no liability for the accuracy of or inferences from the material contained in this publication”. In other words, before there was “no liability for information” now it explicitly claims no liability for the “accuracy of the information”.
Important Notice â€“ please read
This document is produced for general information only and does not represent a statement of the policy of the Australian Government. The Australian Government and all persons acting for the Government preparing this report accept no liability for the accuracy of or inferences from the material contained in this publication, or for any action as a result of any personâ€™s or groupâ€™s interpretations, deductions, conclusions or actions in relying on this material.
It would seem they have tried to expressly remove liability for disseminating inaccurate information. Why? Various Acts forbid the dissemination of misleading and false information. The Trade Practises Act is the primary consumer protection legislation and states:
A person shall not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.
Goods could include reports, models, and possibly even the predictions of climate models, and may be covered by the TPA. However, could the new disclaimer by the CAF that tries to remove liability for inaccurate statements also immunize it from the TPA? I don’t think so.
Congratulations to the CAF for their advances in legal language attempting to protect them from being discussed on blogs, and bound to the standard consumer protections that bind every other corporate body. Following their lead, I will be including the following stupid disclaimer on all my emails:
By sending an email to me, to any of my aliases or to any of my addresses you are agreeing that:
1. I am by definition, “the intended recipient”
2. All information in the email is mine to make such financial profit, political mileage, or a good joke with as I see fit. In particular, I may quote it on the internet.
3. I may take the contents as representing the views of your organization.
4. This overrides any disclaimer or statement of confidentiality that may be in your disclaimer.