Don't Get Into Trouble Over Your Email

January 24, 2001

For the now-famous Claire Swires and the 10 people sacked earlier this month for circulating "lewd" material at insurers Royal & SunAlliance, email really has been shown to be a powerful application. This is just one case of a number over the last few months where the immediacy and informality of email has exposed both employers and employees to embarrassment and legal risk.

Email abuse is clearly an important issue, but it's when commenting on cases such as this one that lawyers risk appearing heavy-handed and humourless - spoiling what is just 'a bit of fun'. For the doubters, perhaps a more worrying example (from a commercial perspective, at least) is that of Norwich Union. The bank had to pay #450,000 to a competitor following a defamatory remark relating to that company on the Norwich Union internal email system.

So the message to employees is to read your company policy carefully - there are harsh penalties for non-compliance, and technology makes it almost impossible to hide the evidence. It's also important for employers to put a policy in place to clarify just what is acceptable.

Below are five things to think about before pressing Send. They shouldn't act only as a warning for employees, but as handy pointers for employers when formulating an email and Web use policy.

All emails sent and received on your work PC can (and are likely to) be monitored. Subject to certain conditions, employers have power under recent regulations to read emails without employee consent.

Racist, sexist, pornographic, harassing, threatening, defamatory or otherwise offensive material will probably be a breach of employment terms and may also be illegal.

Forwarding graphics and sound (and even certain text) will in many cases be a copyright infringement.

Employee emails may bind an employer contractually, often not the intention in an email exchange.

Distributing confidential information is almost certainly a breach of employment terms and may make an employer liable to a third party.

Also, here are my top three excuses that don't work:

"But I got it from a friend." If you forward an email that you've received, you are nonetheless responsible for the content of what you have forwarded.

"But it's downloaded from a public site." Just because a Web site is public doesn't mean that the content isn't protected by copyright.

"But it's not offensive." Just because one person isn't offended, doesn't mean another won't be.

One of the most prolific sources of email abuse stories has, oddly, been the Welsh Assembly. Not only has cannabis been offered for sale on its internal computer system but it was reported that an email asking staff not to divulge confidential material on email was itself leaked.

I'm not saying that company email and Web policies must be draconian - some of the best I've seen accept reality and take a relatively liberal position. However, if you want to avoid you or your business being subjected to bad publi city and legal risks, it's worth making a policy and sticking to it.

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