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CPA requirement for email and social media disclaimers

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Lance Michalson

We are often asked what should be included in an “email disclaimer” - the legal content often found in the “footer” (at the foot) of an e-mail or on a website (also  commonly referred to as a “disclaimer”, “footer” or “legal notice”).

What are email disclaimers?

The text itself often contains content “disclaiming liability for various statements made in the e-mail” or the text contains a hyperlink to a website which itself contains content “disclaiming liability for various statements made in the e-mail”. If you would like more information on email disclaimers, contact us about our “Guide to Email disclaimers“. Aside: there is an argument raging overseas that email disclaimers are not just annoying, but ‘legally useless’. See the article in the Economist titled “Legal disclaimers: Spare us the e-mail yada-yada“.

Not only are disclaimers necessary on emails, but also SMS’, IM’s and posts to social media platforms. With Facebook and Twitter, we sometimes recommend that as part of its social media legal strategy, the company  to insert a link into its  profile which links to a page on the company’s website containing the relevant disclaimer. Regarding SMS’ and IM’s, this is more difficult; the main reason being the practical limitations of space within a small message size.

Legal requirements

So does the law impose any specific requirements for disclaimers? Yes, in terms of the Consumer Protection Act, the Companies Act and the Close Corporations Act.

Section 32(4) of the Companies Act requires every company “to have its name and registration number mentioned in legible characters in all notices and other official publications of the company, including such notices and publications in electronic format as contemplated in the Electronic Communications and Transactions Act…” (our underlining).

Section 23(1)(b) of the Close Corporations Act requires every corporation to “display its registered full name (or a registered literal translation thereof into any one other official language of the Republic) and registration number…in all notices and other official publications of the corporation, including notices or other official publications in electronic format” (our underlining).

In addition, the name of every member must be displayed.

This is in terms of section 41(1) of the Act which says that “A corporation shall not issue or send to any person any business letter, whether in electronic or any other format, bearing a registered name of the corporation, unless the forenames (or the initials) and surname of every member thereof are stated thereon” (our underlining). To not done so, can result in a fine or imprisonment in terms of section 82.

Section 79(2)(a)-(c) of the Consumer Protection Act require all suppliers to “include the following particulars on any…business letter [business email]…: (a) The name, title or description under which the business is carried on; (b) a statement of the primary place at which, or from which, the business is carried on; and (c) if the activity is carried on under a business name, the name of the person to whom that business name is registered.

Summary of legal requirements

Companies:

  • Company name and
  • Registration number

Close Corporations:

  • CC name
  • Registration number and
  • Name or initials of every member

Both Company and CC:

  • Name, title or description under which the business is carried on (including a “trading as” business name, if applicable)
  • [Address] – statement of the primary place [address] at which [e.g. selling physical goods], or from which [e.g. selling online goods], the business is carried on
  • if the activity is carried on under a business name, the name of the person to whom that business name is registered.

 

 

 

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