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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.
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