In this guest post John McCarthy, Partner at McCarthy & Co. Solicitors, discusses why it’s important to have an Employee Internet Usage Policy.
First it was the text message. Apparently they were originally designed with the decidedly utilitarian intention of providing a portable paging system for craftsmen using their cars as a mobile office. It was never envisaged that they would be used by the general public, much less that they would become a means by which nearly every person in this land, no matter what their age, communicates casually on a daily basis and which they would now feel lost without – ComReg’s report for the first quarter of this year reveals that an average of 192 text messages was sent per mobile user per month in that period.
If you asked a random sample of punters a couple of years ago what Facebook was, only a tiny minority of young technically savvy individuals would have been able to tell you. Today if you admitted that you didn’t form part of the now half-billion strong group of indviduals who have had at least some experience of social networking, the charge could well be levelled that ‘you should get out more’.
Likewise, if you were asked twelve months ago what Twitter was, unless you were a teenage technophile or an especially narcissistic celebrity, you would probably have responded with a blank stare. In the meantime the general population appears to have adopted this newest communication medium with gusto. Now everyone from sixteen-year-olds to senators seems to be tweeting like the new time, so much so that if your website doesn’t urge visitors to “Follow Us On Twitter” you’re simply not at the online marketing races.
The still relatively obscure location-based network-cum-game called Foursquare seems to be in vogue with the social networking vanguard at the moment and is growing in popularity by the day. If and when this application grabs the wider public’s imagination remains to be seen.
Before anyone says it, by the way, I have no doubt in my mind that any boffins reading this are probably by now snorting contemptuously at the fact that I have failed to mention the next big thing in electronic intercourse which I haven’t even heard of yet.
The rapid evolution of these groundbreaking modes of communication has thrown up challenging new questions for society. The right to express oneself and to communicate one’s views is a well recognised human right and anything which enhances the ability to convey information and ideas is, of course, an inherently good thing. However, as our experience of how civilisation has grappled over the centuries with how to regulate the acceptable use of the printed word has shown us, when it comes to trying to identify what constitutes legitimate usage, opinions can vary wildly.
The controversy last summer surrounding the Facebook page entitled ‘RIP Raoul Moat You Legend’ is an interesting example of how the parameters of acceptable usage are the subject of vigorous debate. On the one had you have those who suggest that anything seeking to glorify a murderous criminal who advocated the slaying of policemen should be stopped immediately. On the other you have those (including, as it happens, the owners of Facebook) who claim that no matter how offensive some people find the views expressed on Moat’s tribute page they nevertheless constitute valid opinions and that any attempt to suppress them would be an unacceptable act of censorship.
While notions such as freedom of expression and the acceptable boundaries of censorship are abstract concepts, their interaction nevertheless have very real consequences for normal citizens in their use of electronic communications, as Aishling Madden will no doubt attest. Madden was working as a part-time receptionist in a large consultancy practice. She came across soft copies of work colleagues’ CVs and thought that it would be a simply capital jape to take her colleagues’ contact details and to post them on a website so as to give people the impression that her workmates were offering sexual services to the general public. The plan worked like a dream, with the unwitting workmates receiving several unsolicited phone calls of an unsavoury nature. Perhaps not surprisingly, however, LOL wasn’t the first three-letter acronym that sprang to the workmates’ minds (sorry – I couldn’t resist) and they failed entirely to see the funny side of Madden’s actions, leading to the gardaí becoming involved. Madden’s defence counsel attempted valiantly to argue that her actions were tantamount to nothing more than daubing graffiti on a toilet wall in cyberspace, but the jury was having none of it, and the State secured a conviction against Madden for numerous counts of publishing indecent material and criminal defamation.
After I first drafted the original version of this article in the late summer of 2010 the PricewaterhouseCoopers (PwC) scandal broke some months later. Just in case you’ve been living on another planet I’ll give you a brief summary of the facts. An email containing photographs of several recently recruited female employees together with their names and departments and – wait for it – an individual “rating” as to their sexual desirability, was circulated amongst 17 male staff members, many of whom were quite senior in rank.
The PwC case has clearly shown us that failing to ensure that you have proper IT policies in place can do untold damage to your company’s reputation on a global scale if the story goes “viral”. However, while one always has to allow for the isolated dimwitted actions of a small proportion of any workforce, the fact that this level of idiocy was collectively achieved by such a large number of highly educated employees (some of whom were high ranking) is so unusually egregious that it doesn’t serve as a good example of the exposure which an employer may face in a more typical scenario.
This is why I wish to return to Aishling Madden. Now that she has been successfully convicted you can rest assured that her workmates’ lawyers have given them a detailed analysis of the law of vicarious liability as it presently stands in Ireland. This is the point in the article where a shiver should run down the spine of anyone who operates a business in which their employees are accustomed to using electronic communications of any kind to perform their duties.
While it’s a complicated and technical area of the law, put simply, vicarious liability can be described as the responsibility which can be attributed to an employer for the wrongdoings of his or her employee. If your employee causes harm or offence to anyone while carrying out their employment duties then, in certain circumstances, you can be found liable to compensate the injured party for the wrong done to them, even if you were not aware of what your employee has done and you only find out about when the complaint is made.
The potential for the commissioning of criminal offences and the creation of civil liability by improper internet and email use is staggering, with issues such as sexual harassment; bullying in the workplace; incitement to racial hatred; defamation; and disseminating unlawful pornography being but a few which readily spring to mind.
The problem is compounded by the fact that the alleged wrongdoer may not even have intended to do anything wrong. While clearly there are certain types of content which no one in their right mind could claim to be of a kind suitable for distribution in the workplace, the lines can very easily become blurred in many cases, with what one person sees as a hilarious (albeit rather salty) joke being seen by others as grossly offensive and humiliating material. Remember the UCC fruit bat controversy? An academic working in the university showed a colleague a research paper concerning the sexual activities of fruit bats and before you could say “lawyers’ field day” the college authorities found themselves at the wrong end of a formal complaint of sexual harassment. The committee which was set up to investigate the matter found that the action was a joke with sexual innuendo and that it was reasonable for the complainant to be offended by being presented with it in her office alone and the complaint was therefore upheld. While in this particular case the offending material was not conveyed by electronic means, it nevertheless serves to show how a joke made by an employee in somewhat poor taste can become a real headache for an employer.
While a great degree of sympathy will surely be shown to an employer when an employee does something stupid which in turns offends a workmate in circumstances where the employer has been diligent in trying to ensure that the work environment is kept free of inappropriate material, if on the other hand an employee can legitimately say “No one ever told me we couldn’t email dirty jokes around the office and the practice was widespread for years” then suffice it to say that the employer could find themselves in quite a considerable spot of bother indeed.
The sensible way of dealing with the matter is of course to prepare a written information technology usage policy which sets out clearly and comprehensively the dos and don’ts of internet and email usage in the workplace. Each employee’s contract of employment should then stipulate that they are obliged to adhere to the terms of this policy and it should further set out precisely what disciplinary measures will result if the policy is infringed.
If an employer has taken these precautionary steps not only will they be able to insulate themselves against allegations that they failed to attempt to vindicate the rights of the offended, but they will also be in a position to take effective disciplinary action against the offender. If not, they can expect to become something of an authority on the finer points of vicarious liability.
About the Author:
Solicitor John McCarthy has been a Partner at McCarthy & Co. since 2004. John has accumulated considerable experience in civil litigation at all levels and handles cases in the Circuit Court, the High Court and the Supreme Court.
This is an updated version of an article that was published in The Southern Star on 6th November 2010.