Managing Electronic Communications

In our contemporary digital world, the act of sending e-mails, texts, instant messages, and other types of electronic communications can have significant legal implications that cannot be overlooked. While these types of modern communications offer enormous convenience, speed, and efficiency—and transform the way individuals and businesses interact and operate—their benefits and widespread use carry potential risks and legal consequences as well. They require careful consideration and management.

ELECTRONIC COMMUNICATIONS AT WORK

Within the workplace, the misuse of electronic communications can give rise to a multitude of problems for employers. Employees who are unaware of what can happen and abuse these methods of communication at work can create numerous problems for their company. They include liability for:

• Discrimination or harassment because of racist, sexist, or pornographic e-mails at work;
• Defamation and libel;
• Copyright infringement when employees have downloaded copyrighted content like songs, movies, and images;
• Dissemination of sensitive trade secrets to unauthorized parties, including a company’s competitors;
• Breach of contract or other types of deceptive, unfair, or unlawful business practices; and
• Disclosure of private communications containing potentially sensitive health, financial, and other confidential information, to name a few areas.

Many people are under the mistaken impression that because electronic messages are so fast and convenient they’re somehow transitory in nature and short-lived. This is misleading, however. In most instances, electronic correspondence does not simply disappear in cyberspace, but often leaves a lasting digital footprint that can be retrieved and scrutinized, potentially transforming what many think are harmless messages into powerful and persuasive legal evidence.

Such communications have been a boon to litigators in all types of cases and have become a routine part of litigation nowadays. It’s not uncommon for cases to settle—or even for people to be criminally charged—once the other side obtains these messages. And the public relations fallout from their disclosure can sometimes be worse than the legal ramifications. A company can quickly lose customers and see its hard-earned goodwill suddenly erode due to the damaging content of these communications.

A noted trial attorney put it succinctly many years ago when e-mail was the primary means of electronic communication and before smart phones became so prevalent: “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.” This lighthearted but accurate adage is even more applicable to texts and other forms of electronic messaging that have since become far more ubiquitous.

WHAT SHOULD MY COMPANY DO?

To address these risks, it’s crucial for businesses of all types and sizes to develop, implement, and enforce comprehensive electronic communication and document retention policies which clearly establish, among other things, the absence of personal privacy within the company’s networks. The policies should also establish guidelines for personal use of company communications and formally address the handling of sensitive corporate information.

How long a company should retain these types of messages (and other documents) needs to be addressed in a formal retention policy. While some preservation requirements are dictated by law or by investigations or ongoing litigation, others are subject to management’s discretion. Thus, retaining these electronic communications long enough to meet a company’s business and legal requirements but no longer than is reasonably necessary should be carefully balanced and considered. Although it may be easy to hold onto them indefinitely, doing so could create problems down the road.

Setting clear parameters and expectations can help businesses effectively mitigate their legal exposure and cultivate a culture of responsible and attentive digital communication. Otherwise, taking these widespread and growing communications for granted can have unintended consequences and impact a company’s bottom line and public image.

Takeaway:

Before sending any type of electronic communication, individuals should assess the potential consequences of their message carefully since it can have a lasting impact, even though it may not seem that way at the time. The “jury test” serves as a valuable mental exercise in this regard. This test prompts individuals to envision their text or e-mail displayed on a large screen in front of a jury, with opposing counsel repeatedly reading it out loud and highlighting its contents. Only when individuals are confident in the content and implications of their communication should they proceed to hit the “send” button.

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