Electronic Communications—The Problems

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The rapid development of e-mail and access to the Internet has led to problems regarding the sourcing and use of inappropriate material in the workplace. E-mail allows the instant transmission of a message by a non-typist without the previous time gap for creation which allowed for second thoughts. This can lead to an 'over casual' approach to the generation and framing of such messages. To many users an e-mail message equates to casual conversation but it is written and permanent, unlike spoken words.

The Problems
1. Sections 349 and 351 of the Companies Act 1985 require companies to state certain data (i.e. full name, registered country, number and office) on their notepaper etc. and failure to do so is punishable by fine. If a message is sent by e-mail it is considered to equate to a message sent on a letterhead (i.e. to be a business letter) and as such this required data must appear. Computer programs could be altered so that this standard information always appears.

2. The ability to generate instant responses rather than needing to wait for a letter to be typed leads to instances where ill-considered, overhasty and even rude messages have been generated - and later regretted since they created confrontations which more thought and tact could have avoided.

3. It is possible for one party to create a binding contract where this was not intended by the other party. It may be advisable to require all external correspondence to carry a disclaimer to attempt to indemnify the sponsoring company against improper use of electronic messages, or to stipulate that a contractual relationship will only exist when confirmed in hard copy.

4. It is possible to create libel via e-mail which, once sent, is treated as a written document.

5. All e-mails can be reconstituted in hard copy for up to 2 years. Such messages can be made subject to disclosure requirements - thus, a third party with whom the company is in dispute can require details of all such messages.

6. E-mail and intranets are used widely for the dissemination of personal material. In addition, third parties can 'dump' unwanted messages. As a result, valuable messages may be buried in unwanted electronic communications resulting in considerable time being wasted in sorting the essential from the trivial.

7. External e-mails can contain viruses capable of affecting the recipient's computer systems. Suitable virus shields should be installed.

8. In a number of instances companies' websites have been either tampered with or copied (albeit with unauthorised additions/deletions). The format of the website should, if possible, be protected by copyright whilst employees must be advised that such actions are gross misconduct.

9. The EU carried out a survey recently and found that on average employees use their employer's access to the Internet for an hour each day for private purposes - often to source pornography (70% of pornography is downloaded from the Internet during office working hours). As a further development, in a number of instances such material has then been circulated via the employer's intranet leading to claims for harassment and discrimination.

10. E-mail and intranets are increasingly being used for harassment, discrimination and bullying, which could mean potential liability for the company and possibly its officers as well as those generating such illegal acts. A recent survey indicated that 50% of those questioned had received obscene, sexist or otherwise inappropriate e-mails within the previous year. In addition, access to the Internet enables 'electronic stalking' to take place.

Comments

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