Reinhardt Buys

E-mail a legal headache

2004-05-19 08:30

E-mail and the internet make life faster, easier and more productive, but businesses are learning that they can also bring about legal risks and reputational ruin.

As e-mail moves from personal correspondence to a valuable business tool, more lawsuits will result and the market for products to fight spam will increase.

A recent international survey by the e-Policy Institute found that 62% of employers monitor employee e-mail content and 68% cite legal liability as the primary reason. In the USA more than 87% of businesses have written e-mail policies that govern and limit the use of e-mail services by employees.

A recent judgment by the Cape High Court confirmed that company bosses have a duty to ensure a healthy working environment. If, for example, a male employee sends a suggestive e-mail message to a female employee, she can sue the company for failing to protect her. E-mails containing racist jokes, private information and gossip may have the same result.

During the course of this week, a 32-year-old Johannesburg man was found guilty of loading a virus onto the computers of Edgars, an act which the company claims cost them R20m and affected up to 700 stores.

Last week, the Equality Court ordered Andrew van der Westhuizen to pay his colleague Elliot Senwamadi, at Nashua in Lephalale R10 000 after Van der Westhuizen shared an e-mail "recipe" with fellow staff members on how to "create black people".

Harassment claim and liability for the employer

Given the circumstances, pictures similar to the examples on the right, distributed among employees via e-mail, may result in a harassment claim and liability for the employer.

Long gone are the days when employees were dismissed for watching porn over the internet. These days the illegal downloading of music, books and software through P2P networks place a heavy burden on IT resources.

Potential legal risks increase when employees distribute these files further via e-mail or CD-ROM. Free copies of The Naked Chef, the latest Harry Potter book and even Charlize Theron's movie Monster have been floating around South Africa for months - distributed from person to person via e-mail, normally over corporate networks.

Why would the publishers of Jamie Oliver's book and Harry Potter sue an employee if they can rather sue the employer who has much deeper pockets and would probably settle the matter to escape the reputational harm?

In terms of another recent court judgment a business may be held liable for the damage caused by a virus to others if an e-mail or attachment from the business caused the infection.

The King II Report on Corporate Governance requires company bosses to identify and address IT related risks. This means that companies should take pro-active steps to manage or mitigate internet and e-mail dangers.

Although no law requires a business to retain all e-mail messages, it does not follow that e-mail may or should be deleted after a certain period. More than 35 laws require businesses to retain certain records for certain periods and because of the provisions of the Electronic Communications and Transactions (ECT) Act 25 of 2002 e-mail and other electronic communications must be retained if the e-mail or the attachment contain certain content.

Deleting e-mail like shredding documents

Destroying e-mail messages may destroy important evidence a business may require later to escape liability or win a court case. Deleting e-mail is like shredding documents - it destroys evidence forever.

Notwithstanding the dangers of e-mail and internet use, the creation of a corporate website may also attract a whole range of risks and liabilities. Examples include content liability in foreign jurisdictions; defamation resulting from postings to the website or chat room; liability resulting from linking and framing; copyright infringement; trademark abuse and; mispricing disputes.

The ECT Act also provides for criminal fines and jail terms for certain forms of spamming or sending unsolicited commercial e-mail.

E-mail, the internet and website are not the Wild West any more. Lawmakers and courts, locally and internationally, are doing more and going further to regulate cyberspace and bring online offenders to book.

The obvious question is what businesses should or could do to protect themselves.

Technology is 50% of the answer. Many applications are available to scan for viruses, track illegal content and block certain content or websites. However, technology's success depends on the person using it and human behaviour or wrongdoing can never be controlled by software. This problem is addressed through the use of proper legal documents - legal protections are the other 50% of the solution.

Park at your own risk

Generally businesses should acquire and correctly implement the following legal documents to ensure legal compliance and mitigate cyber risks:

  • Website terms and conditions that address all the necessary risks as well as the issues required by the ECT Act;
  • E-mail legal notices that are available as hyperlinks from the TOP of all e-mails leaving the business. The use of so-called e-mail disclaimers is, at the very least, dangerous - South African courts will probably never enforce e-mail disclaimers available from the bottom of an e-mail. This common practice is much like placing a "Park at your own risk" sign at the exit of a public parking garage;
  • Electronic Communications Policy setting out the applicable corporate rules; and
  • IT Security Policy.

For more resources see the following websites:

www.buys.co.za - casestudies: email internet
www.buys.co.za - casestudies: email blunders
www.epolicyinstitute.com
buysinc.blogspot.com

  • Reinhardt Buys is the Managing Director of Buys Inc. Attorneys and editor of both editions of the South African Cyberlaw @ SA.

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