Although no precedent exists locally, companies that do not have a policy directive regarding e-mail and Internet usage could be exposing themselves to court action.
Ryk Meiring, head of IT and e-commerce law at Spoor and Fisher, points out that a company employee who sends an e-mail containing defamatory remarks about a competitor or person may be exposing the company to possible law suits based on a principle known as vicarious liability, which assumes the employee has the company`s authority to make communications.
Recent private arbitration found in favour of local company, Energizer, which last year dismissed five employees for using its e-mail system to forward inappropriate e-mail to colleagues. The mails included risqu'e jokes, pornographic images and chain mail, which was found to be in breach of the company`s e-mail policy.
Meiring says the arbitration findings do not constitute precedent, but do set guiding authority for any court cases that may follow.
"Up until now, SA has not seen a case like this go to court. The time and costs involved, including educating the judge and senior council, proving foreign case law as well as lack of legislation covering this sort of thing, could see a case in the courts for up to two years," says Meiring.
In terms of a previous labour court finding, an employee`s right to privacy in the workplace is limited, particularly when corporate proprietary systems are used for private use. This would include a company`s telephones as well as its network, making personal e-mail a no-no.
Practical reasons include a company`s avoidance of vicarious liability, the potential for employee harassment, the costs involved, and large files being forwarded to multiple recipients clogging up the network as well as distracting staff from their work.
Meiring stresses that prior to being able to enforce its rights, a company must first have a policy in place restricting this kind of behaviour, that the policy must accord with legal principles, and should be drawn up in such a way as to not infringe on an individual`s right to privacy.
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