Who's liable for e-libel?

Before you click 'forward' on that funny e-mail you've received, you should consider the repercussions, writes Fiona McCann.

Last month, an e-mail was circulated around Ireland purportedly written by the employee of a Dublin company who poured vitriol on an ex-girlfriend and, in doing so, recounted some of the things she had reputedly said about her colleagues within the firm. The people involved were easily identifiable, the content glaringly personal.

The company in question has declined to comment on the issue, but it has been reported that the managing director subsequently issued a warning to employees against forwarding the e-mail, advising that whoever did so would be held responsible for its libellous content. It may already have been too late, given that by then the mail had gone viral in Ireland, appearing in inboxes all over the country and providing ample fodder for water-cooler conversation in offices nationwide.

In a separate incident, a number of e-mails sent out by lobbyists to Irish politicians on the subject of hunting recently made their way into the hands of the Irish Council Against Blood Sports (Icabs). Given that the mails had been sent from the individuals' work addresses, the question arose, at least for the council, as to whether the companies from which the e-mails were sent were officially endorsing hunting.

Icabs complained, and the companies involved were quick to respond, informing the council that the e-mails had been written in a personal capacity and were not meant to reflect the views of the organisations involved. No action was taken against the employees, but the incident did highlight once again the dangers and delicacies involved in e-mail correspondence.

The moral implications of passing on private correspondence aside, these cases raise legal questions that may be enough to give anyone tempted to forward e-mails some pause for thought. Could what you are about to send on to a colleague be considered defamation? Does it contain slanderous content? And could such a simple action put your job or your reputation at risk?

According to David Phelan of Hayes Solicitors, any e-mail of defamatory nature is considered to be "published" once it is sent to any other party. "The individual who typed and sent it can be legally liable," he says. It's not just the sender who has cause for concern, however. "The business from whose account it is sent can also be liable," adds Phelan.

COMPANIES THAT PROVIDE employees with e-mail addresses are looking for ways to avoid such liability because of the difficulties of keeping track of every single mail sent within a working day. As a result, many businesses have formulated specific policies on the use of the internet and company e-mail, designed to give the company some kind of legal protection.

"Part of the reason why you see businesses having internet and web policies might be that the company wants to show that it made its position very clear about what types of e-mails shouldn't be sent. Companies would need to show those sorts of policies are in place to strengthen the argument that they shouldn't be responsible for something defamatory," says Phelan.

This is the reason why an employment appeals tribunal five years ago stressed the need for employers to include statements about the sending of offensive e-mails in their internet policies. In the case in question, an employee at a Dublin publishing firm was appealing his dismissal from the company for using its e-mail facility to disseminate pornographic material. The tribunal found that the firm failed to have in place clear policies and a code of practice on employees' use of e-mails and the internet, and argued that the consequences of its misuse should have been made absolutely clear to all employees. The result? The court found the employee had been unfairly dismissed, and the individual in question pocketed €2,000.

The difficulty lies in applying pre- technology laws to a rapidly changing environment. "It is just about trying to apply old law - the defamation law goes back to the 1960s - to new technology," explains Phelan. "An e-mail sent from one account to another is considered publication. There are arguments that forwarding an e-mail is publication also."

A stark warning for the many that forward on e-mails daily without a second thought about where such actions could lead them.

E-mail is one area that has raised such questions, but another debate rages over who is responsible for postings on a website or message board.

"Internet service providers (ISP) can have a responsibility," says Phelan. "If somebody goes and types something defamatory on a website, there have been arguments that whoever hosts it is liable because they have published it."

In recent cases, ISPs have escaped liability, but Phelan argues that there is a potential responsibility if an ISP has been made aware of offensive or libellous content on a site it hosts and does not act to remove it immediately.

SO WHAT OF a publication on a website or blog that is done on the employee's own time? That too, as a number of high-profile cases have illustrated, has its dangers. In 2005, Joe Gordon, a bookseller, earned the dubious accolade of being the first blogger in Britain to be sacked from his job because of his online diary. The blogosphere was outraged, but Phelan says the company in question, Waterstones, could have had an argument, given that Gordon wrote about his working life on his blog. "They may well have argued that there was some sort of breach of trust."

US blogger Heather B Armstrong, whose blog, Dooce, has been in operation since 2001, had a similar experience. "I was fired from my job for this website because I had written stories that included people in my workplace," she tells readers on her site. "My advice to you is BE YE NOT SO STUPID. Never write about work on the internet unless your boss knows and sanctions the fact that you are writing about work on the internet."

Phelan explains that once again, old employment law principles are what govern such incidents, regardless of what new technology is involved. "If someone has a personal website, the question is whether something they have said constitutes misconduct," he says. "That's the real basic employment law principal."

As new technology continues to muddy the waters, however, bloggers are often those who have the last word. Armstrong now runs enough ads on her website to ensure she does not need to seek out another job. And while she advises bloggers against writing about work, she has a warning for employers too: "If you are the boss, however, you should be aware that when you order Prada online and then talk about it out loud, you are making it very hard for those around you to take you seriously."

Legal web: new technology, old law

Who's liable?

In the case of e-mails, the sender can be liable for the contents of the e-mail, even if it is directly forwarded from another source. If the e-mail is sent from a company account, the company may also be liable.In the case of blogs or posts on websites, it can be argued that the individual who posts, the company hosting the blog or message board, and/or the internet service provider can face liability.

What laws apply?

The Defamation Act of 1961 applies to the content of e-mails and comment or content on websites and blogs. When it comes to an employee being dismissed for e-mails or internet use, the case comes under the Unfair Dismissals Act, among other acts.

What are the risks?

Apart from the likelihood of facing disciplinary action and possible dismissal if found in breach of your company's internet policy, you can also be sued by the offended party for the content of an e-mail.

There is also some potential for criminal liability, with the possibility of prosecution for slander.