Wednesday, January 04, 2006

TechLaw - Computer Law 101 and Four Rules For Effective Email

Mark Grossman’s TechLaw

Computer and Internet law are still so rapidly evolving that the few of us who practice in these areas are often forced to give indefinite answers to our clients’ seemingly simple questions. This week is going to be different, though. I’m only going to discuss clearly established Internet and computer law principles.


Cyberspace is a place where you can destroy personal and business reputations. A statement on a website or posted anywhere online can cause immeasurable damage because of the Internet’s ability to disseminate information widely and quickly.

It’s absolutely clear that the law will hold you legally responsible for defamatory online statements. Statements made online can and will get you sued. For some reason, people think that online doesn’t count. Wrong!

Employer Liability for Employee Email

There’s no doubt that an employee’s improper use of email can lead to employer liability. Email is no different from a letter. Again, just because it’s electronic rather than traditional written communication makes no difference. If an employer would be responsible for a letter, the employer would be responsible for an email.

The list of things employees can do wrong in email is the same as the list for paper correspondence. Employees can violate copyrights, divulge trade secrets, commit libel, send obscene material, bind a company to a contract, harass others, and more.

In some ways, email can be worse than a letter. Email is easier to disseminate and harder to destroy.

I’m not suggesting that a business not use email; that would be insane. Email is the best thing to happen to corporate communication since the telephone. What I am suggesting is that management educate itself about the risks, implement a fair and detailed Corporate Email Policy, and then enforce it.

Bar’s Advertising Rules Apply to Attorney Websites & Email

In Florida and some other states, lawyer’s use of web pages and email are highly regulated. The Florida Bar considers a web page to be an advertisement, and cracks down on the use of email as a form of advertising.

The details of the Florida rules can be found online. Any Florida lawyer considering a website should check with the Bar for details.

Litigation and Computers

Civil litigants, police, and others can subpoena information stored on computers. If I can force you to produce a written document, I can force you to produce computer data. There’s no legal distinction between the two.

In some ways, computers can be a nightmare when it comes to controlling the dissemination of information. It’s easier to control copies of documents, old drafts and other records when they’re on paper than when they are computerized. Between backup tapes, copies on CD-ROMs, and recycle bins, copies of “destroyed” documents have a way of turning up at the most inopportune time for those trying to hide information. For a lawyer with expertise in electronic discovery, it’s goldmine time.

Copyrights and Digital Data

This one never ceases to amaze me. Even reasonably astute people think that copyright law doesn’t apply to digital data and particularly, the Internet. This has got to be the most common misconception about technology law.

Copyright law does apply in cyberspace. There is no “but copying was so easy” defense to copyright infringement. Just because you can readily copy digital data doesn’t mean that it’s legal to do so. The same copyright considerations exist whether you steal my work by retyping it, or by copying and pasting it in a computer file. Sorry, even on the Internet, you still need to get the author’s permission.

Four Rules For Effective Email

Personally, I love email. I think that there’s no quicker, more efficient and effective way to convey routine thoughts in business and handle daily matters: “Dear Assistant, when the messenger arrives with the package from the new client, please review it and have a summary on my desk by the end of the day.” It’s concise, straightforward and verifiable. You never have to hear things like, “but I thought you said the end of the day tomorrow.”

Nonetheless, email is not without its problems. An example is the misuse of cc’s. In the old days, send a cc meant “send a carbon copy.” Carbon paper is now in the museum next to the Jurassic Age exhibit, but the term lives on to just mean “copy.” It’s almost too easy to send an email with "carbons” to any number of people, or forward an email to someone else.

And that means email can make it convenient for managers to sidestep responsibility. Management experts generally want to move decision-making down the chain of command. But it’s simple for a middle manager to send an electronic cc up the chain or forward a message to request guidance from above — and thus avoid responsibility. I think the best way to stop cc’s up the chain is for upper management to wait a day and then send an email back down the chain that simply reads, “So, how did you decide the

Email can also be used as a way to hide from personal contact, a way of distancing yourself from telling someone in the office something unpleasant (or something pleasant, for that matter). This is an unfortunate tendency that you must avoid.

“Your memo was poor” is an example of the kind of email that you should NEVER send. It’s a copout for the sender. It takes a moment to write and send, feels good and avoids confrontation. The sender gets to move on with his or her day quickly. For the recipient, opening an email and getting a criticism or other negative message is like getting clubbed on the head. It’s guaranteed to ruin their day.

You must remember and abide by the following four basic rules of email. Post this on every bulletin board in your office. You have my okay to copy these words verbatim and distribute them as a memo or email throughout your company. It would not hurt my feelings if you prefaced it with “Mark Grossman, technology attorney, says....”)

1. Never, ever give bad news by email. Bad news always deserves a real human voice, whether in person or over the telephone.

2. Never use email to criticize people. It stings more in writing and doesn’t heal with time. All day long, the recipient gets to reopen that email and feel bad all over again. Critical email inevitably eats at the craw of the recipient.

3. Never discuss personal issues over the office email system. It’s truly bad office etiquette. It’s also asking for trouble, because there’s no guarantee that private email will remain private. Carbon copies (and “forwards”) being what they are, you may just find your personal email posted on the lunch room bulletin board. Ouch. Any email that starts with “Oh, honey…….” is probably a personal email that shouldn’t be in the office computer system.

And this last thought comes from a guy who’s enamored with email. I love email so much that one of these days, I’m going to change my outgoing voicemail message to say, “If you want me to respond today, please send me an email. If you want a response this week, leave a message after the beep.”


4. If there is even the slightest possibility that what you are going to say could be taken wrong, don’t use email to say it. Sorry, but sometimes there’s no substitute for that human touch. Occasionally, you must leave your seat, walk down the hall, and personally deliver a message.

Reprinted in its entirety with permission from Mark Grossman

Ben Haslem

While something they write may not be actionable in the country in which they reside (and in which they wrote the post) it can be an entirely different matter in the country where the post is read.

It was a long established legal precedent in common law countries (Australia, the UK, USA, Canada, South Africa, India, Malaysia etc) that an act of defamation (or libel) occurs where the article or broadcast is perceived, NOT necessarily where it is written or published.

In other words, if you write (or post) something about an individual, which under the laws of your country is not defamatory but it is read in a country where it is defamatory, you could be sued.

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