With the current legal loopholes that exist around electronic communication companies should be more vigilant and prevent undue liabilities. E-mail recipients could sue companies if an employee sends or forwards a virus-infected e-mail, Cape Town-based law firm Jan S de Villiers warns.
The firm serves corporate and individual clients in areas such as corporate services, intellectual property and litigation.
“Apart from implementing a good virus checker that blocks viruses entering and leaving the company via e-mail, you can also warn in your e-mail legal notice that the e-mail can possibly contain viruses and that the recipient is responsible for checking and deleting viruses,” says the firm’s information technology law specialist, Pravesh Singh.
Although a company takes ultimate responsibility for the actions of its employees, an e-mail legal notice can decrease liability. Singh argues: “A company can show that it has correctly instructed its employees not to send libellous, inappropriate or defamatory statements. This can be demonstrated with an e-mail legal notice to that effect, and by implementing an e-mail policy that clearly warns employees against misuse of e-mail.”
BMI-Techknowledge concurs that there is a necessity of e-mail message disclaimers and predefined internal codes to govern e-mail-based contractual obligations.
BMI-Techknowledge director Mark Walker says: “This is an issue that needs to be addressed seriously as e-mail is increasingly taking the place of formal, paper-based correspondence in business today.”
While it has become a tradition to insert e-mail legal notices or disclaimers, these often fall short of protecting the company from liability.
The issue of confidentiality remains the key concern for corporate e-mail users. Adding, Singh notes: “The application of a confidentiality clause in an e-mail message is legally disputable when in the small print at the foot of a message.”
“We advocate that companies utilising e-mail facilities for the circulation of confidential material identify important confidential information and send only by encrypted e-mail. Add accountability to your company’s e-mail system by providing a way to record and store all of your business transactions. Put in place an e-communications policy and ensure all employees are aware of your policy governing both internet and e-mail usage,” he continues.
Companies are liable for confidential e-mails sent or forwarded to wrong recipients.
To counter resultant liability, companies should insert their corporate e-mail legal notice at the beginning of the e-mail, in line with the Electronic Communications and Transactions Act 25 of 2002. This would bring the e-mail legal notice clearly to the recipient’s attention.
Singh says if an employee were to give professional advice in an e-mail, the company could be liable for the effect of the advice that the recipient or even third party, reasonably relied upon.
“A suitable e-mail legal notice could protect your company from this kind of liability,” he argues.
It is a good professional practice to ensure that communication is efficiently protected, Walker asserts, and adds: “There is no legal precedence in this area, and that this complicates the issue even further.”
Nonetheless, he advises companies to examine their internal policies regarding e-mail usage and ensure that they are covered should unexpected issues arise.
“We recommend that each company adopts guidelines educating employees about e-mail, the use thereof and the effect of the e-mail legal notice on the company. This guideline should address issues such as the addressing of e-mail, its content, attachments and procedures relating to storage, sending and dealing of spam e-mail,” Singh notes.
“We suggest companies include a contact number and name where the e-mail legal notice document could be requested, should the need arise,” he says. — I-Net Bridge