It is clear from emerging case law that legal disputes arising out of the misuse of email and the Internet are becoming more frequent.
Due to the rapid introduction of Internet access and email systems in the workplace few employers have developed comprehensive policies and practices to guide employees in the proper use of these business tools. The inherent difficulty with email is that it tends to be seen as an informal system. There are normally no set rules as to how or when email may be used and the tone of emails is generally more informal and discursive than printed correspondence.
As a business tool email has become indispensable since it allows massive amounts of information to be exchanged speedily and easily. Email has, however, also developed a social function as an easy and efficient way to catch up on news, stay in touch with friends and loved ones or as an outlet for office gossips. To this extent many employees are guilty of what is loosely termed `cyberloafing`, which refers to either the endless surfing of websites or spending excessive time writing non-work related email. The obvious disadvantage to employers is that working time is wasted and productivity is negatively affected.
Email also represents an immediate form of communication and is seldom edited before being sent to the same extent as other correspondence. Unfortunately this characteristic of email communication increases the risk that messages may be sent in anger or jest without consideration of the consequence of releasing the message into an uncontrolled external environment. The fact that emails can be passed on to third parties at the click of a button compounds the risks in this regard.
Foreign case law
The following three examples from foreign case law illustrate what may go wrong if email is used irresponsibly:
Provident Society vs Norwich Union
In this case the English Court found that Norwich Union had defamed a competitor by sending an email message wrongly suggesting that its competitor was close to insolvency. The message was initially only sent on Norwich Union`s own internal email system but was inadvertently transmitted to third parties and found its way back to the Provident Society which sued for damages. The British High Court held that Norwich was responsible for what had been written on the system by its employees and ordered payment of lb450 000 as compensation to the Provident Society.
US Auto Workers Case
In this American case a group of Black employees successfully sued their employer for racial harassment. The employees alleged that a hostile working environment had been created by email parodies of African American speech patterns circulated on the internal email system.
1267623 Ontario vs Nexx Online
In this Canadian case the service provider Nexx sued 1267623 Ontario, an Internet advertiser for breach of contract. Nexx as service provider had a clause in its standard contract insisting that its users had to follow generally accepted rules of `Netiquette` for sending email messages. The sending of large numbers of unsolicited email advertisements by 1267623 Ontario was found to be a breach of this contractual provision.
South African law
Any of the above scenarios could conceivably also occur under South African law.
Defamation
There certainly exists the possibility of a defamation claim based on email communication when one considers the following definition of defamation `the unlawful, intentional, publication of defamatory matter (by words or conduct) referring to the plaintiff, which causes his reputation to be impaired.` See: JM Burchell The Law of Defamation in South Africa (1985) at 35.
It is clear that in terms of the above definition an email could easily contain defamatory statements and give rise to claims for damages. Vicarious liability for defamation could also under certain circumstances attach to the employer.
Intellectual Property
Intellectual property rights could also be violated by employees making use of the employer`s Internet access or email facilities. If an employee downloads material that is protected by copyright and does so in the course and scope of his employment, for example whilst researching a specific issue for an employer, then employers could attract vicarious liability for such a violation.
Company Law
There are also Company law issues that relate to the distribution of email. In terms of the Companies Act 61 of 1973 it is a requirement that all official company communications reflect the full name of the company and its registration number. In certain instances this may extend to having the details of the company secretary and other information about the directors on the letterhead. To the extent that an email is used to communicate official company information and does not contain the above information the directors commit a criminal offence.
Delict - Civil Wrong
An employer could also be held liable in delict if an employee inadvertently, negligently or intentionally sends a virus by way of email to another company. In such an instance liability may arise against the company should the recipient be able to show that the sender caused damage and that such damage arose negligently.
Disclaimer
Certain companies offer disclaimers as an insurance against this sort of eventuality but they have yet to be tested in the South African Courts.
Formulating a policy response to email abuse
In order to formulate a proper Internet and email use policy for a specific working environment it is necessary first to evaluate the scale and nature of email and Internet use in the workplace. Different levels of use may require different technical and human resources approaches.
Monitoring email
A popular control measure with large-scale users is the use of increasingly sophisticated software that monitors both the content of email as well as the type of web sites employees are surfing. If someone is sending abusive email certain software packages are able to pick this up. This provides a powerful tool for the employer. However, there may also be legal implications in this type of monitoring which we will discuss below. A further problem is that this type of software can be expensive and tends to require sophisticated in-house IT support.
However, the use of software to monitor the situation is only part of the solution. It is fundamental to the process that the employer should design and formulate a policy that sets out acceptable user guidelines in the workplace. The policy should set out the standards for acceptable email content and should lay down guidelines for when and for how long people may use the Internet or send personal emails. A policy should also set out the requisite penalties for failure to adhere to the prescribed policy.
An important consideration in this regard is that the computer resources in the workplace are provided and paid for by the employer and they are used for the specific purpose of the employee`s work. Accordingly all email generated should theoretically be done in the course of work related activities. An employer is equally entitled to regulate email, Internet and telephone use in the office. Given the relatively negligible additional cost of reasonable private email and Internet use and the difficulty of totally excluding private use of such facilities it may be advisable to allow acceptable private use of the system for personal activities. The reasonable standard to be applied in this regard may be determined by the employer. The extent of appropriate use must be dealt with in the policy.
Privacy
It is important that the employees be made aware that they should have no expectation of privacy in relation to information stored on computers provided by the employer. Here the employer should make it clear that it may monitor or read messages if it believes the situation warrants it.
Interception and Monitoring Prohibition Act
The Interception and Monitoring Prohibition Act 127 of 1992, governs the monitoring of transmissions including email. The Act states in section 2(1) that : `no person shall- intentionally and without the knowledge or permission of the dispatcher intercept a communication which has been or is being or is intended to be transmitted by telephone or in any other manner over a telecommunications line; or Intentionally monitor any conversations or communications by means of a monitoring device so as to gather confidential information concerning any person, body or organization.`
To satisfy its provisions the employer must inform employees that it may read the employee`s messages and it should describe under what circumstances it will do so. For example, a policy could stipulate that in the event of a suspected misconduct involving abuse of the Internet or email facilities of the employer, the employer reserves the right to monitor suspected employee`s email and web related activities.
SA Case Law
There have also been some interesting developments in South African case law in this area. In the case of Protea Technology v Wainer 1997 (9) BCLR 1225 (W), the applicants sought an interdict restraining the respondents from competing unlawfully with the applicants. The applicants had annexed to their founding affidavit the transcripts of tape recordings of telephone calls made and received by the respondent whilst in the applicant`s employ. Recordings had been made clandestinely by means of a `bugging` device. The court held that the respondent had been employed in a position of trust. The telephone conversations were conducted from the applicant`s premises during business hours. The court held that where the parties have an employer/employee relationship telephone conversations of the employee relating to the employer`s affairs were not private and were not protected by the Constitution.
The courts in Tap Wine Trading cc v Cape Classic Wines 1999(4) SA 194 ruled that the Interception and Monitoring Prohibition Act did not expressly or by necessary implication render the production of recordings made in contravention of its terms inadmissible in evidence before a court trying a civil dispute. It was also held that in the conduct of civil litigation only, i.e. litigation not involving the State, the use of a `trap` in regard to electronic surveillance did not infringe any constitutional right. The courts therefore have discretion to admit recordings made in contravention of the Interception and Monitoring Prohibition Act as evidence in civil proceedings.
The Court also held that the employer had a contractual right to know this information and had an added interest if the employee was engaged in a delict against the employer. The employer could not listen to private conversations although the employee could be expected to account for their activities during this time. The court held further that as soon as the employee abandoned his private sphere for the affairs of his employer, he lost the benefit of privacy.
The same principles as stated in these cases with regard to telephone conversations will probably apply to monitoring of employee`s Internet surfing and email activities.
It should be noted that industrial espionage has become a feature of business life. The employer must be empowered to take steps to protect itself and the interests of its employees and shareholders. It would be absurd if employees had free reign to use email and the Internet to damage an employer.
Confidential Information
Other area`s that should be covered in the policy document relate to confidential information. Employee`s must take care not to release any confidential information on to the Internet or via email relating to business plans, marketing strategies, product formulations, product development plans, client lists or financial information.
Unacceptable Behaviour
Depending on the work environment it may be necessary to list specific types of behaviour as unacceptable. For example, it will be necessary to prohibit the sending of racist, sexist or abusive jokes, the sending of commercial advertising for other business, or a prohibition on joining Usenet newsgroups from the workplace.
Disciplinary responses
In terms of deciding on disciplinary action in the context of email abuse the employer will have to evaluate what type of response is required. Any response must comply with Schedule 8 of the Labour Relations Act 66 of 1995, in that they must be fair and consistent and any disciplinary rules must be communicated clearly to employees. This may be done by having hard copies of the policy available and/or placing an electronic copy on the company`s intranet. In certain areas such as sexual harassment it would be sufficient to utilise existing disciplinary rules to deal with an offence, however, in other aspects it may be necessary to create specific responses to certain problems.
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