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THE LEGAL STATUS OF E-MAIL

There is a common misconception within the corporate psyche that e-mail messages are subject to privacy rights and that its contents are immunised against potential legal suits such as defamation.

For example, it is not uncommon for an employee of a firm to accidentally breach security by including idle gossip in an e-mail message about a corporation’s confidential activities, believing that the e-mail message is only for the receiver’s eyes.

E-mail is NOT subject to any special privacy privileges. In Australia at present, we have a rather piecemeal legislative approach to privacy headed by the Commonwealth Privacy Act – the ambit of which is confined to Commonwealth Government bodies and credit agencies. So far no rules have evolved within the common law to protect the content of e-mail messages.

So what does this mean for your organisation?

Like any other document, letter, etc that originates from an organisation, the contents of an e-mail message can expose the organisation to a multitude of legal liabilities:-

– misleading and deceptive conduct pursuant to section 52 of the Trade Practices Act

– breach of security

– copyright infringement

– trade-mark infringements or passing off

– defamation

E-mail messages can be requested as part of the legal process of discovery. A fair amount of uncensored information can be garnered from an examination of the e-mail messages which might not otherwise be obtained. The informal format of e-mail means that employees are more likely to let their guard down.

The easily-induced carelessness in e-mail communication simply poses a threat to the organisation. Even if the employee thinks that they are deleting the message there may be backup tapes running which store these e-mail messages onto the hard disk of a computer system.

Similarly, there might be sensitive information which may be periodically deleted from directories as a security precaution but which nevertheless may be called up by a computer expert from the hard disk if necessary.

Should your organisation be involved in any form of litigation, it would pay to bear in mind that lawyers will not hesitate to use this new weapon.

The introduction of a specific provision in the recently-introduced Evidence Act allows computer-generated documents, including data stored within a computer, to be tended as evidence.

E-mail represents a new generation of communication which is becoming as firmly entrenched as snail-mail and facsimiles. Employees should be strictly advised that its easy accessibility and lack of formality should not lull them into believing that its contents cannot compromise an organisation.