Mark Grossman

Solid Computer Law Is Emerging

Tech Law

February / March 2005 By: Mark Grossman Volume 3 Number 1

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

Defamation

Cyberspace is a place where you can destroy personal and business reputations. A statement on a web site or posted to a newsgroup can cause immeasurable damage because of the internet's ability to disseminate information widely and quickly. (A newsgroup is like a computer bulletin board where potentially millions of people can read an email.) It's absolutely clear that the law will hold you legally responsible for defamatory online statements. Statements made in web sites, email and newsgroups 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 than a letter. Again, just because it's an electronic rather than traditional written communication makes no difference. If an employer is responsible for a letter, the employer is 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 people 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.

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're computerized. Between backup tapes, copies on floppy discs 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 gold mine 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

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 CCs. 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 that the way to stop CCs 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 issue?") 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 three basic rules of email. Post this on every bulletin board in the office:

(You have my okay to copy these words verbatim and distribute them as a memo or email throughout your office.)

—€¢ Never, EVER give bad news by email, Bad news always deserves a real human voice, whether in person or over the telephone.

—€¢ 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.

—€¢ 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. CCs being what they are, you may just find your personal email posted on the lunchroom bulletin board. Ouch. (Hint: 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."

Mark Grossman is a partner at DeWitt Grossman, Miami.

Disclaimer: The advice given in the TechLaw column should not be considered legal advice. This column only provides general educational information. You must never rely upon the advice given here. Only your attorney can evaluate your individual situation and give you advice.