Law: Our Learned Friend: Access all e-mails

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The Independent Culture
AFTER ALL the press coverage about President Clinton and the Starr report on the Internet, it seems that even 10 Downing Street is not immune from problems with pornography on-line. When three clerks were dismissed from Downing Street recently for downloading "inappropriate material", it was a high-profile warning to all employers about the problems that Internet abuse can give rise to.

Those problems range from potential liability for employees' e-mail to ways of avoiding that liability by monitoring the e-mail, which raises the issue of thus infringing their rights.

Most users don't appreciate that e-mails can be as permanent as paper, but even after it has been deleted, e-mail can remain on the hard drive or be retrievable for years. A recent case involved a libel perpetrated on Norwich Union's internal e-mail system. Although the libel related to rumours about Western Provident's financial viability, it was not claimed that Norwich Union's employees had started it, but that it had been published on its internal e-mail system.

And e-mail is increasingly becoming the medium for harassment and discrimination, whether sexual or racial, or general bullying. Harassment can cover repeated requests for meetings or other unwanted communications. It is also less likely that an employer can claim as a defence that the employee was acting outside their employment.

The more thorny problem arises when employees are sent, or download, sexually explicit material. Accessing obscene or indecent legal material could be an offence under both the Obscene Publications Act 1959 and the Protection of Children Act 1978. A less extreme but more obvious example is where an employee uses a screen-saver which is of a naked person. One way to avoid problems would be for employers to make it clear that just as they would not tolerate a Page 3 calendar on display in the workplace, so an electronic version is equally unacceptable. If not, there could be the risk of a claim of discrimination.

It is not just restricted to sex. Self-styled humour syndicates can be dangerous if they include racist or sexist jokes. In a current case in the US, two employees are seeking $30m each in damages based on the racist contents of such a syndicate. In the UK context, compensation awards for sex and race discrimination are generally lower, although they are not subject to an upper limit, and can also include an amount for injury to feelings. A recent claim of race discrimination - although in a different context - resulted in a compensation award of pounds 385,000 for the claimant.

From these recent events, the general advice for employers is that employees must be told that e-mails are as permanent as internal memos or letters, and so carry the same repercussions as those papers. In terms of the sexism and racism, again employees must be advised what constitutes discrimination and harassment, including that e-mail and the Internet are for business use only and that disciplinary action can be taken if employees use it for other purposes.

Another problem is that many employees assume that e-mails are private, but if they are on an internal system, they can be accessed and read by the employer without the employee's consent. Although there is no express prohibition on accessing e-mails, in a recent case it was decided that intercepting an internal phone call could be a breach of the European Convention on Human Rights. This is not a practical remedy yet, but it could be when the Human Rights Act becomes law. In the meantime, employees who have internal e-mails intercepted without consent could claim breach of the term of mutual trust and confidence in their employment contract.

From the employers' point of view, a clause could be included to state that they have the right to access, read and print out e-mails in the contract or staff handbook. Some internal systems now have software that will stop an e-mail being sent if it contains certain trigger words.

Meanwhile, perhaps triggered by recent events at 10 Downing Street, Peter Mandelson indicated this week that he is planning to legislate to "liberate electronic commerce and make it safer".

The writer is a partner in the employment team of the law firm Olswang

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