A key concern for website owners is whether they can be held liable for information on their websites.
electronic DNA. Under federal law (and most state laws), all paper and electronically stored information (ESI) that is considered a business record can be discovered in a lawsuit and used for or against your organization. Notevery message or posting or electronic con-
versation you have rises to the level of a business record. Federal law does not require that your organization retain all email and other ESI forev- er. Within the ordinary course of business, and based on advice from your legal counsel, you can and should purge electronic information that has reached the end of its useful lifecycle. There is no hard rule on this. In most cases, seven years should be sufficient. For insignificant emails, a timeframe of 90 days should be adequate. The key requirement of an ESI-retention poli-
cy is the ability to produce this data in a timely manner. It is important to have written retention policies and written deletion schedules and to strictly adhere to them, so neither you nor your organization canbe accused of illegally destroying, tampering with, or concealing evidence.
Privacy and Confidentiality The key issue here is whether employers can mon- itoremployeeemailandelectroniccommunications. Thefederal ElectronicCommunications Privacy Act (ECPA) generally prohibits anyone, other than the sender or the intended recipient, from intercepting an electronic communication.That said, theECPA has been held to allow employers broad discretion in monitoring and reviewing all employee elec- tronic communications without consent. The best practice is for employers to notify employees that their computer activity is being monitored and that employees have no reasonable expectation of privacywhenit comes toemail, instantmessaging, web-surfing in general, blogging, texting, social networking, andall other forms of electronicbusi- ness communication. A key risk when employees use email, blogs, IM, texting, social networking, etc., is the loss of
confidentiality. Employer policies should clearly and emphatically state that electronic communica- tion is not the bestwayto communicate confiden- tial information.
Website Content — Establishing a Legally Safe Presence Online It is never too late to conduct a legal review and risk assessment of your organization’s website, its con- tent, andhowit is used. Somelegal issues that are common to every website include:
Information Accuracy — Defamation In our legal system, you are responsible for what you do and say—whether in a group of people or on the Internet. Ifwhat you say is false and injures the reputation of a person or a business, you can be held liable for monetary damages. Note that social-networking users do not have
any of the immunities grantedto social-networking sites. Social-networking users still canbe liable for postingdefamatory content or content that infringes onthe intellectual property rights ofothers, evenif thewebsiteowner can escape liability. A key concern for website owners is whether
they can be held liable for information on their websites.Theanswer dependsonwhether theweb- site owner is the “publisher” of the material or merely the “distributor.” The law is clear that the original publisher of any media (including websites) is responsible for the accuracy of the material it publishes.Apublisher is definedas onewhohas the right to create, change, alter, or suppressmaterial. In the workplace, the employer organization is always the publisher of content posted by its employees. As for the issue of liability for messages posted
on websites by third parties via bulletin boards, chat rooms, listservs, blogs, tweets, etc.: TheCom- munications Decency Act of 1996 enacted by Congress prevents website owners from being treated as the publisher or speaker of any informa- tion provided by another content provider (i.e.,
ON_THE_WEB: The Social Media Law Update blog helps you keep abreast of the legal issues regarding social media: www.socialmedialawupdate.com.
John S. Foster, Esq., CHME, is an attorney and counsel, whose firm—Foster, Jensen & Gulley, LLC—specializes in the legal aspects of meetings and association manage- ment. He reviews and negotiates supplier contracts for companies and associations, and conducts in-house workshops for organizations on industry legal issues. Contact him at (404) 873-5200 or John.Foster@FJG Law.net.
This article is intended to be educational but is not intended to provide legal advice. Readers should contact an attorney who has knowledge of his or her specific circumstances for advice.