Related posts:No related photos. Web of intrigueOn 1 Apr 2000 in Personnel Today Previous Article Next Article Comments are closed. E-commerce. It’s the businessbuzzword that is bridging the millennium. But as the pace of change continuesto quicken, the electronic revolution is not without its problems foremployers. Through a series of light-hearted but real-life scenarios, ColinTweedie looks at some of the serious issues that can ariseScenario 1 Alan and Bob are employed by CyberCo and send e-mails to each other relayingjokes about fellow employee Dougie’s Scottish background. Dougie is copied inand Alan and Bob assume he finds it funny, but he takes offence. The e-mailsare all derogatory of Scots and one in particular contains a reference toDougie, suggesting he is lazy and often drunk. Colin Tweedie comments: Alan and Bob’s comments may have seemed likeharmless fun at the time but they are in danger of “cyberlibelling”Dougie by suggesting he is lazy and often drunk. Cyberlibel is a relatively newphenomenon which is set to multiply in line with the number of people usinge-mail. E-mail communications have the potential to open up a worldwideaudience of hundreds of millions at the push of a button and so there isgreater risk of liability for Alan, Bob and anyone else committing cyberlibel. Liability in this case does not, however, stop with Alan and Bob. They weresending the e-mails during working time, and therefore CyberCo couldtechnically be held liable by virtue of vicarious liability. Even if they wereacting outside the course of their employment, CyberCo may also be liable as”publisher”. CyberCo is responsible for providing Alan and Bob withan e-mail system and access to the Internet. CyberCo also has a duty of care toprotect staff from harassment. For employers with a recognised e-mail policy, the “Internetdefence” under section 1 of the Defamation Act 1996 does provide a defenceif they were not the author or editor, took reasonable care to prevent a libelor did not know that what they did caused or contributed to the publication ofa defamatory statement. Scenario 2 Every day at work, Alan and Bob spend time surfing the Internet, downloadingjokes and animated cartoons which they attach to e-mails and forward to Dougie.Colin Tweedie comments: Alan and Bob’s “extra-curricular”activity is not unique. In fact more and more staff are surfing the Net attheir employers’ expense – booking holidays, for example – and this particularproblem raises a number of important issues for employers to address. First, there is the question of degree in terms of what material employeesare looking at, and for how long. Second, opening the computer networks for Internet connection orunauthorised surfing of the Net makes companies more exposed to hacking and tocomputer virus attacks which can lead to theft, destruction or alteration ofimportant and confidential data. Because of the dangers associated withsurfing, employers need to make a concerted effort to ensure that employees areaware that extensive private use of company assets such as the Internet is notpermitted. To avoid any confusion, CyberCo should have drawn up a clear policyoutlining the permissible workplace uses of the e-mail and Internet. Third, copyright exists in text, graphics, sound effects, music andcartoons. By downloading material from the Internet where there is no expressor implied permission from the copyright owner and forwarding it to Dougie, Alanand Bob have breached the copyright by transmitting the cartoons. A dedicatedpolicy would protect CyberCo from vicarious liability in this instance too. Scenario 3 The firm has an important customer, Impress, which employs Alan’s friendEmma. Thinking Emma would enjoy a joke, Alan sends her an e-mail which reads: “Hi Emma. I thought you might enjoy this one. Just click on the box andwatch what he does with the haggis! I’ll catch up with the gossip when I seeyou on Thursday. Incidentally, there’s a rumour that my boss is leaving to joinlocal rivals – not official yet.” Inadvertently, Emma copies it to all Impress staff. The managing director ofImpress, Jock, a Scotsman, reads it. Colin Tweedie comments: One grave anxiety about e-mails is the way theycan, particularly through attachments, import viruses into otherwise healthycomputer systems and cause havoc. In this scenario, Alan is sending an attachment to Emma and she in turn hasopened an attachment sent from outside. Impress is unlikely to be impressed bythat, particularly if a virus was transmitted. Even though CyberCo wasoblivious to Alan’s antics, it is liable if a virus was transmitted and couldbe considered negligent in allowing that to happen. Although the publication of obscene material is a criminal offence, a recentsurvey reported that more than half of the 805 employees questioned hadreceived obscene, sexist or otherwise inappropriate e-mail correspondence inthe last year. If employers turn a blind eye to their staff transmitting obscene material,they may risk being accused of aiding and abetting the crime although, here,there is no evidence that CyberCo knew about Alan’s e-mail. To address this problem and that of transmitting a virus, any e-mail policyshould emphasise the golden rule that attached files from outside are notopened without being screened by the IT department. Once again, CyberCo and Alan are both guilty in this scenario of copyrightinfringement and, by repeating the rumour about his boss joining a rival firm,Alan may also be in breach of confidentiality on the basis that the departureof his boss could be confidential and not something that CyberCo would want oneof their customers to hear about. The informality and simplicity with which e-mails can be sent, and thematerial which can be copied and forwarded, is a major problem for allemployers and makes breach of confidentiality far more likely. It alsoundermines the employer’s ability to protect its trade secrets and theconfidentiality of its information. In different circumstances, CyberCo couldalso be liable if confidential information entrusted to it by a third party wasabused in the same way. Finally, the e-mail sent around Impress could damage the customerrelationship as it shows a lack of professionalism as well as a lack of clientcare. Scenario 4 Meanwhile, CyberCo receives an invoice from a company for a subscription toits web site. Apparently Bob entered the CyberCo’s name when asked for a passwordto enter the site. Colin Tweedie comments: CyberCo may not think it is legally requiredto foot the bill. But staff have apparent authority to form contracts on behalfof their employers provided an outside party reasonably believes they have thatauthority. As e-mails are generally identified as originating from a company, therecipient will, in most cases, be acting reasonably in believing he is agreeinga contract if he assumes that it is sent with the company’s authority. In thiscase, Bob probably contracts with the outside company when he enters hispassword to gain access to the web site and CyberCo is therefore obliged to paythe invoice. Scenario 5 Dougie invokes the grievance procedure and says he is also consulting alawyer. Colin Tweedie comments: Although he doesn’t say why he is invokingthe grievance procedure, Dougie could be alleging e-mail harassment or”cyber-harassment” as it is becoming known. Although cyber-harassment is a fairly recent development in this country, itcan lead to discrimination claims in relation to sex, race or disability.Claims in the US have centred on the premise that offensive e-mails create ahostile working environment. One could argue that Alan and Bob may not havegone quite as far as creating a hostile working environment, but they maynevertheless be guilty of direct race discrimination against Dougie. Clearly, employers are under a duty to protect employees from harassment andshould have a policy against harassment. Employers who turn a blind eye to theproblem may face: a) Liability for breach of that duty b) Vicarious liability for the acts of employees abusing thee-mail/Internet, and c) The potential for a constructive unfair dismissal claim, based on abreach of mutual trust and confidence, if the employer fails to deal with thematter appropriately. Dougie also says he is visiting a lawyer, and this raises an important pointin relation to disclosure of information in litigation. Employers shouldremember that a party to legal proceedings will be under a duty to hand overall relevant documents, whether or not they are helpful to its case, includingany electronic records such as e-mails. They should also be careful whenchoosing e-mail as a form of communication in relation to contentious material.Colin Tweedie is an employment partner at Addleshaw Booth & Co Learning points– With the growth of electronic communications, it is crucial that allemployers have a comprehensive e-mail/Internet policy in place.– When implementing an e-mail policy, employers should ensure that it isproperly drawn up and communicated to all employees, specifying boundaries forusing the firm’s computer equipment as well as the penalties for breaching therules. – The policy should clearly prohibit the distribution of defamatory,abusive, sexist or racist messages as well as the downloading of offensive material.The rules regarding on-line behaviour need to be set out too. Particularlyimportant is pointing out the perils of sending confidential messages by e-mailor Internet, and the importance of having all file attachments checked forcomputer viruses before opening to avoid importing viruses into the company’ssystems.– The existence of such a policy, properly implemented, demonstrates that anemployer has taken reasonable care to prevent abuse and misuse of anyInternet/e-mail facilities and will ensure any problems such as those faced byCyberCo can be resolved quickly and effectively.