Electronic Communication

E-mails are the cockroaches of litigation. They’re out there, they’re multiplying, they’re hard to kill, and they always show up when company’s around.”

—Texas trial attorney

email traveling around the worldBelieve it or not, clicking that innocent-looking “send” button can have legal consequences—sometimes disastrous ones. E-mail is inexpensive, convenient, and nearly instantaneous. It has transformed the way the world communicates and does business. However, e-mail has a dark side. The characteristics that make e-mail so convenient can also bring unintended risks.

E-Mail at Work

Employees who abuse e-mail at work can create many problems for their employer. Companies have encountered a wide variety of problems due to e-mail usage, including liability for:

  • Discrimination because of racist, sexist, or pornographic e-mails at work;
  • Defamation and libel;
  • Copyright infringement when employees have downloaded copyrighted songs, movies, and images;
  • Dissemination of sensitive trade secrets to others, including competitors; and
  • Disclosure of private e-mails.

The list will only continue to grow. Furthermore, many employers are subject to suit in another state if the recipient of the e-mail has been harmed or damaged in that state. Just because your company is located in Boston, Cambridge, Waltham, or in another Massachusetts city doesn’t mean that your business is safe. E-mail can provide the basis for a court located in another state (and perhaps even in another country) to exercise its jurisdiction over your company.

Did you know that electronic information, such as e-mail, never really goes away? For attorneys, e-mail has been a boon to litigation. Nowadays, attorneys always seek the opposing party’s e-mail during a lawsuit. For some reason, people say things in e-mail that they would never write down on paper. Unlike paper, however, e-mail cannot be easily destroyed. Copies remain on individual computers, servers, PDAs, and Internet service providers. Computer forensic specialists can easily retrieve them. If you think that your e-mails, instant messages, or other electronic communications are going to remain private, think again. They are transmitted everywhere. All someone has to do is look for them.

Many cases have been settled after embarrassing e-mails have been disclosed. These cases range from discrimination to negligence to patent infringement. E-mails have been referred to as the “truth-serum of the next millennium.” A trial attorney in Texas put it even more succinctly: “E-mails are the cockroaches of litigation. They’re out there, they’re multiplying, they’re hard to kill, and they always show up when company’s around.” Truer words were never spoken.

What Should My Company Do?

Every company, no matter how small, must have a comprehensive e-mail, Internet usage, and document retention policy. The policy should make it clear to employees that they have no “right to privacy” in the workplace. Nothing sent through the company’s system is confidential—even if it is marked “confidential” or “personal”. The company has the right to read all e-mails at any time. This policy should also prohibit or curtail personal use of company e-mail. A company may also want guidelines in place which exclude the use of e-mail when particularly sensitive corporate issues are discussed. When serious infractions occur, the company must discipline the offending employee.

These are just a few of the many areas that any well-drafted policy should cover. Your goal is to minimize your company’s exposure to liability. We can assist you in developing thoughtful, comprehensive, and pragmatic e-mail and document retention practices to minimize that exposure.

send buttonWondering if you should send a particular e-mail (especially at work)? Try the “jury test:” Imagine your e-mail blown-up on a 4’ by 4’ screen in front of a jury. Opposing counsel is reading it out loud over and over again to the jury. If that doesn’t concern you, take a deep breath—and press the “send” button.

Spam

Formally, it’s known as “unsolicited commercial e-mail.” You know it as “Spam.” Whatever you call it, everyone hates it and wishes it would go away. Numerous polls have found spam to be one of the chief complaints of Internet users. Get-rich-quick scams, tips on “hot” stocks, and offers for cheap medications are part of an all too familiar daily avalanche of email.

Unfortunately, spam is not only going to be with us for a long time, but it’s going to get worse—much worse. One study estimates that in 2007, 10.8 trillion spam emails were sent, which surpassed the 10.5 trillion legitimate, non-spam emails. Spam slows down system response time, transmits viruses, decreases productivity, and reduces revenue. Spam has become such a problem that both the House and Senate passed the Controlling the Assault of Non-Solicited Pornography and Marketing Act (or “CAN-SPAM,” as it’s commonly called) by dramatic margins.

The CAN-SPAM Act, which became effective on January 1, 2004, imposes limitations on businesses who solicit prospective customers via e-mail. Businesses that violate the law can receive heavy penalties. In December of 2004, prior to the CAN-SPAM law, a federal district court in Iowa awarded an ISP over $1 billion in damages against several companies which sent millions of pieces of e-mail to the ISP’s subscribers. In 2005, AOL obtained a $13 million judgment against a group of commercial e-mailers and seized the assets of one its members. Those assets included a brand new Hummer and almost $100,000 of cash and gold bars.

The CAN-SPAM law imposes many requirements for commercial e-mail of which companies must be aware. Some of them include:

  • False or misleading header information is prohibited. This information must accurately identify the person who initiated the e-mail;
  • The subject line must accurately identify the contents of the e-mail and cannot mislead the recipient; and
  • The e-mail must give a recipient a way to “opt-out” of receiving the e-mail. Either a return e-mail address must be provided or some other type of Internet-based method must be available which allows a recipient to opt-out.

These are just a few of the requirements that a company must follow when sending unsolicited commercial e-mail to others. Penalties for violating these provisions can range up to $11,000, but additional fines can be imposed for commercial e-mailers who engage in questionable practices. Such practices include “harvesting” e-mail addresses from websites or generating e-mail addresses using “dictionary attacks.” Criminal penalties can also be imposed in certain circumstances.

Just because e-mail is an inexpensive and convenient way to communicate doesn’t mean that its use is without risk. We can help your company navigate through the complexities and issues involved with corporate e-mail use. Some of the ways we can help include:

  • Drafting a comprehensive e-mail and Internet usage policy;
  • Developing a document retention and destruction policy;
  • Determining whether your company is in compliance with spam laws;
  • Defending your company against a spam lawsuit or compliance action; and
  • Initiating litigation against others who abuse your company’s e-mail systems.

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Copyright © 2004-2013 Daniel A. Batterman. All Rights Reserved.