Ronald Hicks

Monday, 22 July 2002 09:52

e-liability

Today, more and more companies have e-mail and Internet systems that allow their employees to communicate among themselves and with others outside their companies.

The advantages are numerous. Over the Internet, e-mail can be sent instantaneously, at any time of the day, regardless of whether the person receiving the message is at his or her computer. Because e-mail can be stored and archived, it is available at any time to the recipient and can be forwarded to other persons by a simple click of the mouse.

However, the advantages that e-mail and Internet systems bring to the ability of companies to communicate expose them to a whole host of risks and liabilities. Companies now face claims of harassment, discrimination, copyright infringement, insider trading and unfair business practices as a result of employees who have sent e-mail messages that are considered illegal or objectionable.

In the government’s antitrust trial against Microsoft, subpoenaed e-mail comprises a significant amount of the evidence introduced by both the government and company lawyers. In other cases, Chevron reportedly paid $2.2 million to settle sexual harassment charges after employees received an e-mail joke, and R. R. Donnelly became entangled in a lawsuit which involved 165 racial, ethnic and sexual jokes sent by e-mail.

A company’s exposure to liability from e-mail and Internet usage arises not only from the content of its employees’ e-mail, but also from actions a company may not be permitted to take with respect to monitoring such communications. The Federal Electronic Communications Privacy Act prohibits the unauthorized interception of electronic communications, including e-mail, and many states, including Pennsylvania, recognize a common law right of privacy. These privacy rights raise concerns for companies which seek to investigate or monitor employees’ e-mail messages without proper authorization.

Given the risks and liabilities of e-mail and Internet systems, should companies continue to use them? Yes. Like all risks, there are ways to manage a company’s exposure.

Deterrents include establishing e-mail and Internet policies, training employees on proper e-mail and Internet usage, using legal disclaimers on e-mail messages and purchasing software that blocks certain e-mail messages or Web pages.

Ronald Hicks is a partner in Pittsburgh law firm of Meyer, Unkovic & Scott and chairs the firm’s Technology and Web Site committees. Reach him at (412) 456-2837.