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Hal Licino

Are Your Emails Creating Vicarious Liability Issues?

Jan 04 2011, 11:22 AM by

Vicarious liability is a legal term that particularly impacts any business that deals with email communications. This statutory principle states that an employer will usually be held responsible for acts committed by their employees in the course of their work. The precise definition is a matter of jurisdictional determination, but the general overview is that even acts which can be deemed "incidental" to the duties of the employee can carry considerable liability under the law to the employer. Email marketers should take meticulous steps to ensure that "otherwise innocent" electronic communications do not lead into troublesome and expensive legal entanglements.

Email marketers, especially those who engage heavily in social media, have massive exposure to vicarious liability issues: Any words whatsoever which are typed in by your employees and emailed to a customer are suitable as evidence in a lawsuit... and could even lead to criminal prosecution. Many email marketers may be surprised to learn that it's not just the personal email correspondence which is engaged in by your employees that can lead to vicarious liability issues, but even official business communication including emails, instant messaging, social media posts, and even SMS!

Confidentiality - Most people would be aware that discussing confidential issues in an email creates a legal liability, but the definition of confidential information is wide to the point where most topics that deal with other people should never be included in any form of electronic communication. Even the simple act of stating to Ms. X that Ms. Z recommended your brand could be seen to be a breach of confidentiality unless Ms. Z specifically provided authorization to reveal her identity to Ms. X or any other third party.

Defamation - The discussion of a third party if not in unequivocally glowing terms can lead to liability for defamation. Even if your employee has clear and unmistakable evidence that a particular customer is pulling some sort of scam, such as qualifying for multiple discounts or give-aways under different identities, that information must never be placed in any form of electronic communication including internal emails. These issues should only be discussed in person behind closed doors, and then only with the personnel who are strictly on a need to know basis.

Harassment - Any form of sexism can be determined sexual harassment when included in an email. The sexism does not have to be extreme, as any form of acknowledgement of sexuality or even gender issues can fit the definition under the law. Something as mild as commenting on how attractive a person is in their social media avatar, or discussing a relationship issue that is placed on their "wall" can open up the company to liability issues.

Infringement - It seems very natural to just copy and paste a quote or a paragraph from some web source to include in an email, but most people are not aware that it represents copyright infringement. 99.9% of all the content on the internet is copyrighted and unless the source material is in the very rare position of being in the public domain, the inclusion of that content in an email becomes a legal breach of copyright.

Contract Formation - The law does not consider signed boilerplate tomes in triplicate to be the only form of contract. Any specification of actions to be committed in an email can be held up in court to have been a formation of a contractual agreement. Therefore, if an employee promises something to a customer, whether it be a discount, a pair of tickets, or any other form of reward or special consideration, then those terms must be adhered to just as if it was written in a formal contract.

Developing a thorough Acceptable Use Policy and ensuring that all of your employees are clearly aware of each of its clauses is of paramount importance. The adherence of every single person in your company to carefully thought-out policies can make the difference between business as usual and a court date.

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