BEWARE THE CASUAL EMAIL
IT LINGERS LONGER THAN YOU THINK!
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What is this E-mail Thing?
E-mail can seriously damage your business. It is legally dangerous. It
sits halfway between a telephone call and a letter. It is intended to
be ephemeral and informal. It is neither. It appears to disappear at the
touch of a button. It does not. Its apparent informality is a trap for
the unwary who are often unguarded in what they write in e-mail. It appears
private. It is anything but. Your e-mail indiscretions (and those of your
staff) can go global.
Open Kimono
In litigation, you must hand over all relevant paperwork. This is called
‘disclosure’. Rather apt as far as e-mail is concerned. What
a rich source of disclosure this can be! Companies in litigation have
frequently regretted the frankness with which their employees have recorded
their views. This is a frequent occurrence in employment claims involving
allegations of unfair dismissal or racial or sexual discrimination. The
‘golden rule’, both personal and corporate, is not to commit
to an e-mail anything which you would be embarrassed to have read out
in open Court. If the thread is getting out of control….use the
magic words ‘can we continue offline please’.
Print or Be Damned
E-mail is also unpredictable. It can evaporate. If you need to create
a written record it is imperative to date it, print it and file it. Without
a printed record you may have precious little evidence to substantiate
your claim if you need to go to Court.
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Forward Button Blues
If you forward e-mail you ‘publish’ it for legal purposes.
If it contains copyright material you may have just committed a breach
of copyright. This can involve text, images, software, audio and any
other file containing material protected by copyright. If it contains
someone else’s name or trademark you may also have gone one click
too far!
E-Libel
Where statements in e-mail include defamatory remarks about a person,
and none of the statutory defences is available, these will be regarded
as libelous rather than slanderous. So no scandal, scurrilous, rumour
or name-calling in e-mails, please! One click can be legal publication
to the entire online population of the globe with major damage to reputation
and consequent liability.
Web-wide Woes
A mail message that might be perfectly proper here might easily offend
the laws of the country of one or all of the recipients in a number
of ways. It might be blasphemous, in breach of national security, obscene
or in breach of laws concerning marketing securities or other goods
or services. Where there are legal implications, they need to be considered
in relation to the jurisdictions of all possible recipients.
Avoid ‘Click’ Contracts
Under English law, you can enter into a contract by e-mail. You may
even do so without knowing it. Provided you have an offer, an acceptance,
‘consideration’ and intent to create legal relations you
probably have an
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