Many employers are now well aware of the potential for internet abuse. There have been a number of high-profile examples of staff who have faced stiff punishment for sexual and racial harassment via e-mail. It is now commonplace for companies to have internet and e-mail policies forming part of their contracts of employment. Not only does this help to protect the business from hacking and other computer security breaches, it also ensures that employees are aware of the appropriate levels of e-mail usage that will be permitted by their employer.
However, the explosion in popularity of mobile phone text messaging has lead to the advent of a new crime, known as "textual harassment". The question is, have employers caught up with the technology or do their employment policies need updating?
Several years ago, the unreported case of Western Provident Association v Norwich Union Healthcare arose between two insurance companies in relation of the content of e-mail correspondence. The case ended with a six-figure payment by Norwich Union to Western Provident and swiftly resulted in the creation of e-mail policies by employers anxious to avoid future litigation over defamatory e-mails.
While text messages were originally seen as a fun way to send friends a few words, they are increasingly used for more business and other correspondence as people become used to the technology. Lawyers are also forming the view that text messages may be deemed publications in a permanent form - and therefore potentially libellous - as the messages are stored on servers.
As well as forming the basis of possible libel lawsuits, the Protection from Harassment Act 1997 could be used to prosecute individuals who send nuisance text messages. Further actions could be brought for assault or public nuisance depending on the circumstances, as well as for offences under the Malicious Communications Act 1988 or Public Order Act 1986.
In terms of liability, network providers would probably be able to rely on the defence of "innocent dissemination" in a libel action. The new Electronic Commerce Regulations also exclude liability where the operator has acted as a "mere conduit", provided it has no knowledge of or editorial control over the content.
But what of the employer who allows the employee to use a company mobile phone unchecked? Clearly, they could be found vicariously liable for the acts of the employee if they are doing an unauthorised act in an unauthorised manner.
The question companies should ask is: are we covered? The best course of action is to review the firm's email or internet policy. If one is not in place, or if it does not cover mobile communications, it is worth documenting the company's guidelines for acceptable mobile phone use. Otherwise, the next message that flashes on your screen could be a court appointment.
This information is for general information purposes only, and should not be relied upon as a source of detailed legal knowledge. Legal advice should be sought before acting on the basis of any information above, and AND WE CANNOT ACCEPT RESPONSIBILITY FOR LOSSES ARISING AS A RESULT OF FAILING TO DO SO.
NOTE: this briefing note was originally created as an IT Update by Kimbells LLP in November 2002
