Corporate Training Magazine

The Seven Deadly Sins of Electronic Communications
Vol 2 Issue 1- Jan 2006

By Eric Rosenberg

Everywhere you look email is in the news, with many companies large and small getting into deep trouble because of it. And while email and other electronic communications like instant messaging are not inherently bad, their inappropriate use has tarnished many companies' images in the media and led to numerous legal problems that could easily have been avoided. Identifying potential pitfalls and taking concrete steps to prevent them can help employers save embarrassment, time and money.

The first step toward problem solution is to comprehend the principal sins of electronic communication.

1. Assuming "delete" effectively erases the email trail
Writers of email on business systems still widely believe their content is not permanent and that deleting it on the computer screen eliminates all traces. With this basic misunderstanding, they write careless content they would not normally commit to a written memo. But through technical means, most deleted emails can be recovered, and courts have therefore imposed burdens and severe penalties upon litigants for failing to use every effort to find electronic records.

2. Using company email for personal use
For various reasons, employees feel no compunction about sending a purely personal email out through the company system. In addition to fostering illegitimate use, this behavior conditions writers at the corporate keyboard to composing in a sloppy and informal manner.

3. Not considering how the email would look in the public media
Even when written for business purposes, emails are not composed with an eye toward public dissemination. However, through circumstances often impossible to predict, they frequently end up in very public places. The objective should be to write emails we would be comfortable seeing on the front page.

4. Creating untruthful content by exaggerating, joking, losing one's temper, boasting, guaranteeing results, carrying on a debate or spreading rumors
In the crush of communications across the virtual desk (often exceeding 100 per day), writers are tempted to seek special attention by inflating the urgency of their efforts. They also are prone to using "gallows humor" to handle business problems that are consuming them, or to pressing their views in a "broadcast" debate of a business issue. All of this tends to create email content that is not literally true. Unfortunately, jurors tend to find email content more believable than other documents or testimony; they find it the most candid communication and a key to determining intent.

5. Failing to heed copyright laws
While it is easy and tempting to distribute protected creative content to fellow employees by email, that action often may be a copyright violation. This illegal distribution activity is particularly ill-suited to businesses, such as the entertainment industry, that actually depend upon the sanctity of intellectual property rights.

6. Failing to double-check addresses
Auto-fill address functions, replying to all, using distribution lists and forwarding long strings of content can create terrible delivery problems. Embarrassment or worse can befall the sender or the creator of content that was forwarded to the unintended recipient.

7. Ignoring incoming email that requires corrective action
Any particular email opened (or even unopened) on an employee's machine may convey information imposing a burden of corrective action. It is easy for busy employees to act as if an email were not received, but doing so can have dire consequences.

Having become familiar with the principal sins of e-communications, compliance and human resources personnel may be tempted to return to the days of drums and string telephones. However, there's no need to resort to that. Since any violation of email policy can be costly, even a partial improvement in employee behavior will be worth the expense. Using a combination of the following techniques should produce significantly better compliance.

1. Having a written e-communications policy, signed by each employee upon hiring and updated annually, is essential.
The policy should set the standards for content and state clearly that all employee outgoing and incoming electronic communications are considered corporate property that will be subject to surveillance and retention. The potential for discipline, including termination and personal liability to the company, should be included in the policy.

2. Content surveillance and a consistent disciplinary process should be established.
An increasing number of useful systems are available for conducting technical surveillance of company email. Some of these examine communications before they leave the sender's control or before the incoming messages are distributed to the intended recipients. At best they can intercept and prevent transmission of messages that violate protocols customized for the business. Installation of a surveillance system normally involves a per-seat charge and assignment of internal compliance personnel to follow up on identified troublesome communications. Even if not perfect, the existence of surveillance, when employees know about it, should have a prophylactic effect. Indeed, anecdotal evidence suggests that the amount of troublesome email declines as time goes on and employees know the standards are being enforced with state-of-the-art surveillance.

3. Employees should be required to demonstrate basic familiarity with the particular features of the email system on their machines.
Without verifying an employee's specific abilities, your firm would never put an employee on a piece of heavy manufacturing or transportation equipment capable of doing great damage if misused. Similar care should be used before letting employees loose on the email system, particularly since people have different proficiencies and experience with e-communication applications. It would be helpful to have a brief standardized course familiarizing every new employee with the features of your system, even producing a short test and actual "licensing" of the employee to use your system. That is far superior to the usual practice of trial and error or having a random employee give pointers.

4. Hire an expert to conduct litigation risk minimization training.
Preferably this is done in group sessions and sometimes supplemented by online follow-up. There is no substitute for demonstrating in a lecture setting the content-related problems you want to deter and connecting them to litigation issues that are not always self-evident. The process does not have to be dreary. In fact such a training session, about 45 minutes in length, can be educational and entertaining. Too many employees do not realize how their violation of any of the seven sins can cause problems, and how they can accomplish their missions without committing any sin. A live presentation by a skilled lecturer will allow for misunderstandings of policy to be aired and for the group as a whole to realize how their behavior must conform to standards. It also provides a good occasion for reviewing corporate policies relating to problem elevation under governance legislation (such as Sarbanes Oxley in the US) and for conveying the useful role that a company's legal staff can provide in that process.

5. Make sure that the firm's technology and legal staff are coordinating well on email issues.
For example, both specialties need to have a common understanding of what retention policies are actually being enforced at the firm. New features such as voicemail delivered through email should be vetted by the legal staff before they are installed.

6. Consider placing severe limits on personal use of firm email and computers, cutting personal emails to exigent circumstances only.
One way this can be accomplished is by surveillance focused on repetitive use of non-corporate email addresses. Such limitations, while perhaps initially irritating to your staff, pay large dividends by fostering discipline in the composition of email content.

Eric Rosenberg is the founder of the communications and document management firm LitigationProofing, LLC.