Our Data Protection and Cyber Law team discusses a number of legal risks arising from communications at the workplace which do not adhere to proper data and communication policies.
Electronic communications, including e-mails and text messages, have become the rule in business and enterprise environments. They are efficient, easy to resort to and inexpensive. They are usually sent hastily and are believed to remain private. Also, they are not usually filed or preserved electronically and may often be lost or deleted along the way. Nevertheless, their importance may be high. Informal communications may even sometimes be used to take high-stake decisions. We touch upon the key legal risks that emanate from such communications and offer some basic guidance on how to safely use electronic communication.
What are the risks of casual communications at the workplace
There are two main risks in casual emails exchanged at the workplace.
First, it is very easy to send an electronic message without much thought to wording or context. Such messages can nevertheless be relied upon in the future and create evidentiary risks in a lawsuit. Such messages can have the same effect as an official company document in a lawsuit. A simple text message, written in a moment of anger or hurry, can be relied on by the other side to undermine the integrity and credibility of a company.
Second, organisations that are involved in a lawsuit may be required by court order to produce all communications, including casual text messages related to the matter. Once under such an obligation, it would be illegal to destroy or not to produce any such communication.
In order to avoid unnecessary questioning in a courtroom or the embarrassment to explain a casual or misinterpreted communication, a business should implement proper policies, so that all communications are conducted professionally.
What to do
Enterprises should develop and enforce electronic communication retention policies, including text messaging and social media. The policy must define a clear retention and destruction policy. Deletion must be done on a regular and timely basis to avoid the need of having to do so during a lawsuit.
Employees should always assume your email or message can be or will be made public. As a consequence, employees are required to be careful and thoughtful of what they are writing in a communication, no matter how seemingly informal or inconsequential the communication seems.
Employees should also be explained that they should say only what they mean and mean exactly what they say. Electronic communication should be treated as formal communication. Any misuse of a word can lead to misinterpretation of a conversation.
In addition, employees should be encouraged to use phone calls and in-person meetings instead of written electronic communication to discuss sensitive matters. Where there is a potential dispute on the horizon, written messages should be limited to the extent possible.
In addition, extreme care should be shown as to the recipients of emails, in order to avoid the mistake of accidentally sending a confidential reply to a group of unintended recipients where the email was only meant to reply to a person.
What not to do
Employees should be discouraged to use sarcasm, speculation or make jokes in work-related emails. When these are read in a future time, tone and context are often lost in written messages and what was really meant cannot be understood.
Employees should also avoid speculating about the cause of a potential problem or admit liability. The author is assumed to know the accurate fact and speculations otherwise guesses can look like facts in the future. If the author is assuming a fact, the communication must clearly state that is a speculation.
In addition, employees should not assume that an electronic communication, such as a text or an email, can be rendered unrecoverable, simply because it can be deleted. Even though deleted communication do not appear in inboxes, they can be recovered from where they are stored such as hard drives, cloud storage or servers.