For further information or assistance please contact:
Chris Sherliker
Email:
cjs@silvermansherliker.co.uk
Silverman Sherliker LLP
SOLICITORS
7 Bath Place,
London
EC2A 3DR
Telephone: 020 7749 2700
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7739 4309
email:mail@silvermansherliker.co.uk
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enforceable contract. If you want to avoid this you
need to specifically exclude the intention to create legal relations.
You also need to make it clear that the company only concludes paper
contracts and that no member of staff has the authority of the company
to enter into e-mail contracts. Email should be clearly marked ‘subject
to contract’.
Your E-Policy
Companies should ensure that where there is a possibility of their
staff committing them to contractual relations by e-mail rules are
drawn up (and enforced) setting out the authority of each member of
staff to do so and stressing the dangers of making contractual commitments
inadvertently are stressed and where there is no intention to create
a binding commitment. Company e-mail policy (including the policy
on intercepts - see below) should be set out in the Staff handbook.
www.cantkeepasecret.aargh!
E-mails are not private. They are by their nature public. Once in
play anyone can read them. They may be forwarded and replicated infinitely
and easily. English law on protecting confidential information is
very difficult to enforce. Even if you have a confidentiality notice
on the e-mail the information may not be considered confidential by
a court. When sending data that may be confidential the legal advice
must therefore be (i) do not do so if you do not need to, (ii) encrypt,
(iii) include a confidentiality notice as a header at the start of
the e-mail,(iv) interrupt the text at intervals with a confidentiality
notice and (v) if possible, identify the recipient prior to sending.
Privilege? What Privelege?
Letters to your lawyers are usually covered by ‘legal privilege’
that means that you do not need to disclose them to a court. If you
send data by e-mail you may be taken to have waived this right.
General Intercepts
If an e-mail is intentionally intercepted, what action can be taken
against the person who has intercepted the communication? In England
it is a criminal offence under the Interception of Communications Act
1985 to intercept e-mail if the interception is effected on a public
(as opposed to a private) network. It may also be possible to take civil
action against the interceptor for breach of confidence if the interceptor
discloses or, it is believed, may disclose confidential information.
Employer Intercepts
As an employer you cannot intercept or ‘snoop’ on employee
e-mails without the employee’s permission. (The regulation of
Investigatory Powers Act 2000). If you do you commit a criminal offence.
Such unlawfully intercepted e-mails cannot be used as evidence in court
proceedings.
Opened in Error
Do you incur any liability if you send e-mail to the wrong person in
error?
An e-mail that is opened by an unintended recipient is likely to be
treated in the same way as a letter, which goes astray and is opened
in error. There is case law relating to letters opened in error to the
effect that contents are actionable where the sender should have foreseen
that the contents could be read by someone other than the intended recipient.
It
is likely that a court would treat e-mail in a similar way. So, for
example, defamatory statements in an e-mail would probably be actionable.
Data Rights
The Data Protection Act 1998 provides that personal data should only
be transferred to other countries, which have equivalent protection
to the UK unless certain conditions are met. Great care must therefore
be taken if personal data is to be sent out of the UK.
In summary, e-mail should be treated with respect.
Treat it casually and the legal repercussions can be significant.