E-mail is regarded as informal and disposable. Content does not seem to matter much because it can apparently be disposed of forever by pressing the delete button. Now that lawyers have got in on the act, however, many of these assumptions have proved to be wrong. Case law has shown that employers may be liable for the content contained in employee emails.

Employers may be legally responsible for the communications their employees make as they may be regarded as vicariously liable for the libels perpetrated by its employees if they were carried out in the normal course of the employees' work.

Specific Issues
1. Jurisdiction
E-mails can be transmitted to recipients in other jurisdictions. Cheerful and uninformed gossip, originating and entirely permissible in the United States, say, might, if retransmitted within the jurisdiction of the English Courts, take on a gravity and a price tag which would astonish the individual who first made the allegation.

2. Discovery
E-mails relevant to an issue which is being litigated are required to be disclosed in the normal process of discovery. Even those which have been deleted can be retrieved readily from the hard disk of any of the PCs which sent or received them. Parties to legal proceedings in the past have learned the devastating effect on their legal positions of disclosing internal hand-written communications. Internal e-mails are often just as frank, just as devastating and, to be cynical, much harder to destroy.

3. Sex and race
The risks of discovery are particularly critical where allegations of racial or sexual discrimination are involved. Messages involving actual racial or sexual abuse are clearly significant; more insidious are those which may have not been sent to the Plaintiff but which indicate that the employer permitted an ambience to arise in the workplace where such attitudes were regarded as permissible.

4. Copyright and attachments
The text of e-mails are likely to be protected by copyright, although this in itself may be trivial. More important is the copyright in attachments to e-mails. Text, pictures, animated graphics, computer programs and even music may be sent as attachments to e-mails. Sending, receiving and even allowing copyright material to be processed through an independent server are likely to amount to a breach of the owner's copyright. The Internet has of course flourished on the tacit basis that copyright in material transmitted over the Internet does not really matter. The position changes as soon as a substantial defendant, which might be liable for the breaches committed by its employees, comes on the scene. In the same way, trade mark rights may also be breached

5. Confidential Information
Confidential information has the characteristic that once disclosed it ceases to be protectable or valuable. Employees can disclose it more rapidly and comprehensively by e-mail than by traditional means.

6. Viruses
Invariably, companies install firewalls to detect and sideline graphic files, in particular, which might carry viruses. Unfortunately, firewalls are not that discriminating and tend to read (and, therefore, block) text of sufficient length and complexity.

7. Unintended Contracts
Just as the Internet has often been considered a liability-free zone, many people mistakenly assume that contracts must be in writing and in a particular format to be valid. This creates particular hazards. Contracts traditionally have been concluded on paper with standard terms and conditions automatically attached. These terms will normally not be made explicit in e-mail communications. Employees with no authority may commit their employers to major contractual commitments and open-ended liability. Their letters and faxes may have been scrutinised by someone in authority before they were sent, but often there are no such rules for e-mails, and if there are, they are hard to enforce.

8. What employers should do
It will be apparent that there are several ways in which substantial employers who provide their employees with e-mail facilities may find themselves sitting ducks for litigation arising out of actions by employees which are unconsidered, unauthorised and often meant in fun.

Employers need to issue rules making clear what constitutes unacceptable behaviour. These rules need to be enshrined in contracts of employment or staff handbooks and enforced. They should explain the issues; some staff may simply be unaware that transmitting somebody else's photograph by e-mail is an actionable breach of copyright. They may also be unaware of the indestructibility of e-mails. They should be encouraged to treat e-mails circumspectly, to keep copies and lay down rules and penalties for misuse.

Employers should set up systems to track e-mail traffic. This enables them to police their rules and to recover e-mails of which they need to have records.

In relation to unintended contracts, there should be rules concerning who may conclude contracts. Systems should be put in place to ensure that e-mails specifically provide that they are "subject to contract", and will be effective only when confirmed in the traditional written way. Alternatively, e-mails should be prefaced in such a way as to incorporate the employer's standard terms and conditions. Some firms now top-and-tail all their e-mails, mainly so as to limit their liability.

Summary
We hope that the above is useful and not too alarming! If you have any particular queries regarding the use of email in your firm, please contact Robin Bynoe at robin.bynoe@charlesrussell.co.uk.