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Mark Grossman

Staying out of Trouble Online

16 November 2000

The end of the last century brought us Internet access in the workplace. While it's clearly a great tool in the office, it can cause problems too. Here are some tips for keeping your business out of trouble online.

Let's start with the most basic concept. The Internet isn't some lawless subculture that exists outside of the "real" world. What you and your employees do online counts. Your business should have a written Internet Use Policy in place to help minimize the legal risks that could embroil you in unneeded litigation.

For some reason, even reasonably bright people seem to think that anything goes online. They couldn't be more wrong.

One troubling area is copyright. A common misconception is that once somebody posts material on the Internet, it's in the public domain. Wrong!

Copyright law applies on the Internet too. Just because it may be as easy as clicking "File, Save" to copy material doesn't mean that it's been donated to you.

While the Internet may raise some questions that are uniquely online issues, this doesn't mean that the basics change. Sorry, but you can't copy your competitor's website, change the name at the top and make it your website. It's a copyright infringement just as it would be if you did that with their paper brochure. This is true even if they didn't register the copyright with the Copyright Office and you can't find a "©" anywhere on the site.

Another problem area is e-mail. People say the darndest things in e-mail. Things they'd never say in a paper letter or formal memo. Folks who should know better, like Oliver North and Bill Gates, have been betrayed by their own e-mails.

It just may be that e-mail is too easy to send. In many ways, it's as easy as or easier than making a telephone call, so people treat it like the telephone.

Helllllllllllo! Knock. Knock. Is anybody home? It's not a telephone.

Generally, telephone calls are ephemeral and not recorded. E-mail is always recorded. We call the recording device a hard drive. This should be obvious.

Even worse is that "Forward" button. With a few keystrokes, your e-mail could be everywhere you don't want it to be -- and you may have no way of knowing that it's there.

The point is that while private verbal communication can often be safely informal, e-mail can never be. Litigants can subpoena e-mails in litigation just as they can subpoena other written documents.

You should always assume that once you hit the "Send" button, it's gone and out of your control forever. You can never really be sure that you've deleted all traces of it and you should act accordingly.

As a businessperson, you must train your employees to be cautious about what they say in e-mail. It should be treated like formal written correspondence in the sense that what you say can come back to haunt them later in a courtroom or the boss' office. (I felt that it was important to clarify the way I meant "formal" because I wouldn't want to be the one responsible for people using fewer smiley faces in their emails.)

Using copyright and e-mail as examples, the higher-level point is that you must train your employees about the proper use of the Net. "Common sense" is something mom, dad and life experience hopefully taught us. When it comes to the Net, you shouldn't assume that your employees have common sense. It's all too new for common sense to have been learned and developed.

It's easy to forget that just a few years ago, ubiquitous Internet and e-mail access in the office wasn't the norm. As an employer, you generally have no reasonable expectation that the people who work for you are experienced Web surfers. What might seem like common sense to those of us who've been online for awhile may not be obvious to the occasional home AOL user. It's all about training.

You have to train people to accept the idea that if they libel somebody in an e-mail, chat room or on the Web, they can get you sued for it. Eventually, this will be "common sense," but today it's training.

Another troubling area is online contracting. While it's true that the law can sometimes be unclear about whether a contract you enter into online is a "real" contract, you should train your people to assume that it is. It goes back to the basic concept that "online counts."

If you have a policy that limits who can sign contracts for your company, you need to make it clear that this applies to online contracts too. Having said that, this doesn't mean that your offline contracting policy will perfectly fit the online environment without at least some thoughtful modifications. You should consult with your Tech Lawyer on this for the details.

A final thought for the day has to do with adult websites. It's really quite simple. Your Internet Use Policy should prohibit viewing adult sites at the office. (Sorry if I'm killing your fun.)

It's nothing but trouble. Inevitably, somebody is offended. If it gets ugly enough, you may find somebody accusing you of having a sexually hostile work environment.

It's all about training and having a good Internet Use Policy in place. With this, you minimize the risk that providing Internet access to your employees will haunt you.

Staying out of Trouble Online is republished from
Mark Grossman
Mark Grossman