Ask the Lawyer @ Silicon.com

Q: I am setting up a complaint Web site where the public can air their grievances and complaints about products and services. I am concerned that a member of the public may libel a manufacturer/service provider and that I could get caught in a prosecution. What can I do to prevent this?

A: First of all, you need to be aware that while I can tell you what English law has to say about this, your Web site will be accessible in many other jurisdictions, and publishing material on it exposes you to actions under those local laws as well.

There is an element of 'Catch-22' about this in English law. If you exercise editorial control by vetting or editing material, you will become a publisher and consequently you would be open to defamatory actions. (Demon Internet have recently been down this route, to their considerable cost.) You would be responsible for all comments posted by visitors.

But if you do not exercise control, the volume of defamatory material may be very large and your risk of facing an action is much larger. The result of the Demon case is that the only prudent course will be to remove material as soon as anyone complains - which means paradoxically that your site could quickly become very 'pro-manufacturer' as all negative comments are removed as the manufacturers object!

If you are totally determined to proceed, you should seek detailed legal advice. Here however are some things which may help to reduce your exposure a little.

1. Post some content guidelines - users of the site should agree to abide by these before being able to post their message (including a promise to indemnify you for loss resulting to you from them posting inaccurate material).

2. Upon any complaint, remove the offending material immediately and maybe post a retraction. Refer anyone who complains to the source, if known.

3. If you don't plan to monitor, include a clear disclaimer.

4. If you plan to monitor, implement a time delay in posting to give you a chance to check material.

Of course, if you are an individual with no assets, no-one will actually sue you - but you may find the whole enterprise fraught with difficulty.

Q: I'd like to know if I am legally entitled to monitor and analyse how email is used within my business. Do I have to tell people that I am monitoring their email (from a purely legal rather than an ethical perspective)? Are there restrictions on what I can monitor, or on what action I can take on the basis of monitored emails?

A: You don't say what your position is, but to monitor emails you'll need to be a company director or otherwise authorised to conduct activities on behalf of the company.

The English courts have not yet dealt with the question of whether employee privacy is as or more important than the rights of an employer to monitor what goes on in his company. There is a conflict between the employee's right to privacy and the employer's access requirements.
Currently, the best view is that companies should obtain the permission of their employees to monitor their emails, either as part of a general email usage policy, or else in company employment contracts or staff manuals.

It sounds as if you suspect that some employees are up to no good. What you can do about it will depend on what it is they're doing (criminal conduct, time wasting, bullying/harassment, running a business on the side, or leaking information, to name a few), and also on the terms of employment (written or otherwise, including any incorporated policies on email use and disciplinary procedures). It is therefore not possible to comment definitively here, but probably, you can proceed without undue risk.

As for specific legislation, beware the Data Protection Act 1998, which is relevant to monitoring email content. The processing (including storing) of personal data relating to a living individual requires the consent of that individual (or one of the other pre-conditions of the Data Protection Act 1998 to be satisfied). That means ensuring compliance while monitoring the detailed content of messages and email can be difficult. This is especially true in relation to emails containing personal data belonging to persons unknown - such as the senders of email to the person being monitored. Traffic patterns relating to individuals may also be Personal Data.

However, the Data Protection Act will not prevent you from using the material acquired through monitoring in any action for unfair or wrongful dismissal - though in theory you could be investigated by the DP registrar.

Q: My company has recently purchased a call recording solution for a number of call centres. Is there a requirement by law to tell callers that they are being recorded?

Also, during the procurement process one of the prospective companies suggested that there is legislation being planned for all businesses to record telephone conversations where a credit card transaction takes place. Is that true?

A. You are required to make 'every reasonable effort' to inform users in advance that
their calls are being recorded or monitored.

Your operation will be subject to a class licence under the Telecommunications Act
1984 - depending on your size, different licences will apply, but it doesn't matter in
this case because both relevant licences contain a provision requiring you to tell
callers about the recording. A single clear notification may suffice to cover multiple
calls.

Furthermore, the Telecommunications Data Protection Directive prohibits listening, taping and storage of communications without the consent of users. This provision of the Directive is being implemented as part of the new Regulation of Investigatory Powers Bill, which is still in progress. There is an exemption which allows covert recording of communications for the purposes of providing evidence of a commercial transaction. It is not yet clear whether this will take precedence over the telecoms-class licences if there is an inconsistency.

As to your second question, there is no such legislation in the pipeline. Oftel and the DTI have confirmed this.

** Network Multimedia Television Ltd/Silicon.com give no warranties as to the accuracy of the information and advice contained herein and can take no responsibility for any acts or omissions resulting from reliance upon the information provided. Commentary is intended only as general guidance on legal issues arising from the circumstances described, and specific legal advice based on all relevant facts should always be sought.