Please note the Law may have changed since the publication of article.

Q: What does the law stand in terms of responsibility for contents of email? If it goes out under a company name is it the company’s responsibility?

A: The doctrine of vicarious liability applies equally to emails as it does to other forms of correspondence. Namely, if the recipient reasonably believes the email to be sent by someone representing the company, he/she is entitled to take the contents of that email as representing the views/standpoint of the company. If the recipient has good reason to believe that the sender is not acting on behalf of the company, but in fact acting on “a frolic of his/her own” then this may make such reliance unreasonable.

Q: Is a disclaimer enough to offset this?

A: The question of the effect of disclaimers is vexed. The first question is whether the disclaimer, being unilateral i.e. the recipient does nothing to signify acceptance of the disclaimer is legally effective. Leaving this fundamental issue to one side, it is fair to say that the chances of such efficacy are almost certainly enhanced if any one or more of the following factors comes into play:

• the disclaimer appears at the top rather than the bottom of the email. In this way, the email comes to the attention of the recipient before he/she has read the contents of the email so that in the same way as a fax front sheet disclaimer, the recipient can make an informed decision whether to proceed to read the contents.
• if the recipient has had previous correspondence with the sender of the email, the recipient may be taken to have digested the contents of previous email disclaimers and it would be reasonable to conclude that he/she received the email with full notice of the standard disclaimer and could have refused to continue the correspondence exchange should he/she have been unwilling to accept the terms of such disclaimer.
• the actual contents of the disclaimer are important. It must cover the various areas of potential liability in such a manner as to satisfy the relevant guidelines which have arisen from recent caselaw and, also, statute, such as the Unfair Contract Terms Act.

Q: How can a company minimise the damage done to it by employees who have sent embarrassing/offensive emails? What procedure should they follow?

A: It is advisable to provide employees with a separate email system for private use so as to minimise the risks of such a personal email being taken to represent the views of the company. In that scenario, ironically, it may well be preferable to have no corporate email disclaimer as that would suggest that the email emanates from the company. The types of legal problems that can be caused by an email are numerous and it is not possible to prescribe a single course of action to try to ensure damage limitation. Defamation, Misrepresentation, Breach of Confidentiality, Virus contamination of recipient’s network are just a few examples of the potential consequences of an email which can give rise to legal recourse. Certainly, the best course is, where possible, to try to undo the damage that has been done. Usually, a quick call to a lawyer well versed in the relevant area of law is the best starting point.

Q: What else can a company do to cover itself legally? Are there any clauses that can be written into employment Ts&Cs?

A: Every company should have a detailed “Email and Internet Use Policy” in place. Not only should it be issued to each member of staff but also must be signed and returned by them. The policy should set out the sanctions for various types of breach of the policy and/or should be legally tied into the relevant sections contract of employment or contract for services which governs the member of staff.

The standard policy that my firm has produced for clients covers a wide range of areas, including rights of the employer to monitor use of email and the internet (consent is generally necessary under recent legislation), Illegal Activities, Defamation, Copyright, Avoiding Virus Risk, Download of Internet material and entering into web-based contracts.
Q:What are the implications for companies who send contacts to clients or employee offers (jobs, shares, car, etc) via email. Is it as legally binding as a letter?

A: There are 4 basic components of a contract, namely offer, acceptance, consideration (i.e. each party deriving a benefit) and intention to create legal relations. There is no problem in entering into a contract via email and the basic rules of contract creation are the same as in the off-line world. Employees with access to the internet and, all the more so, those with control over the company website, need to be made aware of the basics of contract law to ensure that they do not unwittingly bind the company to contracts which it does not want to enter into. The notorious problems of “Argos” and the under-priced TV’s are worth remembering in this context.

Q: What about internal mail – do bosses have to watch their language and any discriminatory feelings they might have?

A: Yes, there have already been quite a few cases about harassment/discrimination of various types, including sexual and racial that arise from ill-advised use of the internal email system. A recent case on this point involved a black secretary who sued her solicitor employers because one of them sent an email to another, from which it was inferrable that the fact that the secretary was black might have played a role in her dismissal.

© This article is copyright Simon Halberstam  2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.

Please note the Law may have changed since the publication of article.

Norwich Union paid out £450,000 several  years ago because of a libellous email sent by one of its employees. Defamation, unintended contract formation, misdirected emails all bring into focus the desirability of email disclaimers. The questions are what form should such disclaimers take and what is their likely effect.

In this article, Simon Halberstam considers these and related issues. The issues are considered more thoroughly in a guide to internet law available from Simon’s firm, details of which appear below.

General

The value of disclaimers is limited, since the courts normally attach more weight to the substantive content of the communication and the circumstances in which it is made than to any disclaimer. Having said that, disclaimers may possibly be helpful if an issue ends up in court in various respects such as those described below and, since disclaimers cost (almost) nothing, it is worthwhile to use them. Even though their effectiveness in court is doubtful, they may provide a useful argument in negotiations to resolve a dispute.

The comments below are based on the position under English law. It is likely that the position under the laws of most other countries is similar on most points, but specific consideration of the relevant laws of other countries would be an extensive exercise. One area where the laws of other countries is different is the compulsory disclosure of documents for legal proceedings. Many countries whose legal system is not derived from English law do not have compulsory disclosure, in which case the issue of exemption from disclosure does not arise.

Confidentiality

Under English law a recipient of a communication is obliged not to disclose its content or use it for a purpose other than the purpose for which it was communicated, if (but only if) the communication was expressly or implicitly confidential. Whether a communication is implicitly confidential depends on whether a reasonable person in the position of the recipient would regard it as confidential. Clearly this leaves room for argument and there have been differing decisions on whether information provided voluntarily for the purpose of interesting the recipient in doing business is confidential.

Therefore an express statement that a communication is confidential may well make the difference between its being treated as confidential or not. It could be argued that such a statement is not effective in certain circumstances, for example if it is in small type and liable to be overlooked, or if it is at the end of the message and only seen by the recipient after he has read the substantive content. A clear and prominent statement of confidentiality is therefore to be recommended. However, even in the absence of such clarity, a disclaimer may be effective in relation to a particular message, particularly if the recipient has received messages from the same sender with the same statement previously.

A practice of expressly stating that Emails are confidential may also make it easier to enforce confidentiality obligations on employees and ex-employees. In deciding whether information disclosed to an employee is implicitly confidential or within the scope of an express confidentiality provision of a contract of employment, one of the factors to be considered is whether information of the kind has been treated by the company as confidential.

A suitable statement might be: “Unless otherwise agreed expressly in writing by a [senior manager] of [company], this communication is to be treated as confidential and the information in it may not be used or disclosed except for the purpose for which it has been sent. If you have reason to believe that you are not the intended recipient of this communication, please contact the sender immediately.”

Legal privilege

In English legal proceedings there is a general obligation to disclose relevant documents to the other party. For this purpose documents include information stored electronically and could include communications which have been erased but can be restored. This is, however, subject now to a requirement that the exercise of reviewing the documents which might be relevant should be proportionate to their likely value and the amount at stake in the litigation. Nevertheless, Emails required to be disclosed may provide significant relevant evidence in a commercial dispute.

Confidential communications passing between a company and its external and internal legal advisers for the purpose of giving or obtaining legal advice and communications which come into existence in preparations for legal proceedings are exempt (”privileged”) from this obligation of disclosure.

A confidentiality statement as discussed above helps to make the communication confidential, but its status as a communication made in circumstances attracting the privilege may be supported by a further indication to this effect and claiming the privilege. Such a statement will also warn a person who subsequently has the task of sorting out documents and deciding whether they should be disclosed or privilege claimed. However, such a statement will not confer privilege on a communication which is not in fact made in the circumstances described above. In addition, the statement would be devalued if it were used on communications not entitled to the privilege.

Subject to the above comments, a suitable statement on privilege might be: “This communication is made for the purpose of obtaining legal advice or preparing for legal proceedings and legal privilege will be claimed accordingly.”

Viruses

Computer viruses can of course be transmitted by Email, particularly in attached files. It is desirable to attempt to place the risk and responsibility for checking on the recipient. Whether this would be wholly effective to avoid or limit liability will depend on the circumstances, but it is worth a try. Suitable wording might be: “WARNING: Computer viruses can be transmitted by Email. The recipient should check this Email and any attachments for the presence of viruses. [Company] accepts no liability for any damage caused by any virus transmitted by this Email. This Email and any attachments may not be copied or forwarded without express written permission of [a senior manager of company]. In the event of any unauthorised copying or forwarding, recipient will be required to indemnify [the company] against any claim for loss or damage caused by any viruses or otherwise.”

Libel, infringement of copyright and other wrongful acts

Under English law a company is liable for wrongful acts (torts) of its employees in the course of employment. The informal but recorded nature of Email has made liability for defamation a real risk, and this has been well-publicised. The ease with which software, data, text, music and graphics can be copied on computers, and the increasing organisation and vigilance of copyright owners, have also made this area one of significant risk.

Adding a disclaimer will probably not make any difference if an Email is sent in the course of employment, and is unnecessary if it is not. Nevertheless, a disclaimer on the following lines might possibly affect whether wrongful acts are characterised as being committed by employees and might also concentrate the minds of the employees: “Employees of [company] are expressly required not to make any defamatory statements and not to infringe or authorise any infringement of copyright or any other legal right by Email communications. Any such communication is contrary to company policy and outside the scope of the employment of the individual concerned. The company will not accept any liability in respect of such a communication, and the employee responsible will be personally liable for any damages or other liability arising.”

Contractual commitments

A binding legal contract can be formed by any exchange of communications passing between individuals who have actual or apparent authority to bind their companies. The communications can include Email, and there is a risk that this may bypass both internal procedures and any standard terms protecting the company. Again, this risk may be greater with Email than conventional procedures because it is both apparently informal, yet fully recorded.

An attempt may be made to limit the apparent authority of individuals to bind their company by wording along the following lines: “No employee or agent is authorised to conclude any binding agreement on behalf of [the company] with another party by Email without express written confirmation by [a director of the company].”

Sexual and racial discrimination and harassment

Nasty or even just careless internal emails may give rise to claims of discrimination and harassment. The importance of avoiding this should be drawn to the attention of all employees and covered in the company’s employment code of practice. It is unlikely that a company could avoid liability in this respect by virtue of a disclaimer.

© This article is copyright Simon Halberstam .2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. The contents are intended for general information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.