Some issues have emerged recently in the realm of Internet messages that are so grave as to put an employer potentially at risk of liability for damages, but are unfortunately very common. Most issues revolve around the recipient misinterpreting the message of the sender, or the sender allowing sensitive information to end up in the wrong hands. In order to avoid any such issues in the future, employers should consider the following guiding principles:
- Always observe who is in the “recipient box.” Most e-mail programs give users a “reply” and a “reply to all” option to reciprocate a previously received message. If sensitive material is in the reply message, that information could get disseminated to an untargeted audience by accidentally hitting “reply to all.” The same effect could occur if users allow the program to automatically fill in the rest of the name of a recipient after the sender has only partially typed it out.
- Avoid humor and sarcasm in writing. One feature of electronic messages that has not yet been implemented is a sarcasm indicator. It can be near impossible for a reader to detect sarcasm or humor in a message without an accompanying tone of voice or body language. Depending on the content of a message, it could be mistakenly construed as unprofessional or even elevated to the level of sexual harassment.
- Refrain from using language that seems like an agreement. Depending on the jurisdiction of the parties, it is possible for a person to create a legally binding contract just by e-mailing an affirmative response in reply to a business proposal. If you do not intend for your message to create a contract of any kind, it is proper to indicate so in the message. Otherwise, make sure that the language you use could not be construed by the receiver to be an offer or acceptance of a contract or agreement.
- Assume that your message can and will be read by an unintended recipient. If sensitive information fell into the wrong hands, the sender could be liable for defamation or some other theory of damages. Employees should be trained to identify information that could be hazardous if sent to the wrong recipient, and use more confidential means of transmitting that information. Phone calls or in-person meetings are strongly recommended with sensitive information. This will prevent written documentation of restricted information and minimize the risk of unauthorized recipients.
- Do not rely on “disclaimers” to protect sensitive information. A common practice is to prepend or append an e-mail with a disclaimer, warning the recipient not to share the “confidential” contents and for unintended readers to cease reading the message. An e-mail does not become confidential merely by stating so. Many employees have felt a false sense of security by having disclaimers included, and as a consequence have sent even more confidential information than they would have otherwise. It should never be assumed that an e-mail disclaimer protects the sender from liability in any way.
- Reread your e-mail before sending. Some services, such as Gmail, now allow users to “unsend” a message that was just recently written. This technology allows a sender to retract a message that was already sent before the recipient can see an error that may have been made. This feature probably saves many people from embarrassment often; however, it would be a dangerous practice to send messages without reviewing them, instead merely relying on the service to allow an “unsend.”