Michael Schmidt
15 December 2002
Johannesburg — BOSSES who send unencrypted private e-mails about workers to other managers could expose themselves to damaging lawsuits because their correspondence is not legally private.
This is the position adopted by many information-technology legal experts and lawyers in the wake of a furore over an intercepted e-mail between two Independent Newspapers managers .
The newspaper group is in discussions with the Media Workers' Association of South Africa and the South African Union of Journalists about the e-mail.
However, the unions have indicated that they may go to the Commission on Conciliation, Mediation and Arbitration if their negotiations fail.
At issue is an allegedly defamatory e-mail - sent by Sunday Tribune editor Peter Davis to Graeme King, managing director of Independent Newspapers' KwaZulu-Natal division - suggesting that they "get rid of" five employees because they were "either destructive or useless".
The e-mail was intercepted by an unknown person who distributed the message widely.
The furious employees called in their union representatives and lawyers and are taking action over the alleged defamation. Some workers may cite the e-mail as a factor contributing to constructive dismissal.
Although neither Davis nor King had distributed the e-mail, lawyers agreed this week that they may not have a leg to stand on.
Technology legal expert Lance Michalson said while Davis and King appeared to have a "constitutional right to privacy regarding their communication", "it could be argued that by not encrypting the e-mail, they waived their right to confidentiality".
Michalson said companies should forbid all staff, including managers, from sending potentially defamatory e-mails.
But most legal thinking on company e-mails so far has focused on their abuse by employees - not by employers.
Labour attorney Jay Surju, acting for one of the reporters named in the e-mail, said the legal requirements for defamation had been met - "baseless and false" accusations had been published and they had damaged the character of several people. Surju also argued that the e-mail was "not private correspondence" but company correspondence.
"It was made by a senior executive in the course and scope of his employment and was intended to bring about a cost-saving restructuring," he said.
Cliffe Dekker Fuller Moore, the attorneys for Independent Newspapers , declined to comment.
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