Vicarious liability in the context of electronic communications
Many employers who do not have formal legal training do not fully understand the concept of vicarious liability and its application in the relationship between employers and employees. Vicarious liability is, however, a fundamental principle of employment and personal injury law, and is the basis of most of the risks posed to a business by its workforce. The heart of the doctrine of vicarious liability is that an employer may be held liable under the law for the wrongful actions of its employees where these were done within the course and scope of the employees' employment.
For example, if the delivery driver of Flowers (Pty) Ltd, while on delivery, is at fault in an accident and damage is caused to the property of X, then X can choose whether to sue either the driver, Flowers (Pty) Ltd, or both.
This decision as to "who to sue?" will invariably be based on "who can pay?". In most cases this would lead to X proceeding against Flowers (Pty) Ltd, the employer, because it, rather than the driver, has the ability to satisfy any judgement that the court will make in X's favour.
Another way of looking at vicarious liability is through "the creation of risk" test, an approach which considers whether the employer, by providing an employee with access to business tools, has created a risk to the general public. In the above example a court would consider whether Flowers (Pty) Ltd had created a risk by providing their driver with a motor vehicle, and it would conclude that it had.
In the context of the use of electronic communications tools as part of the employment contract, the courts have not shied away from holding that employers, by allowing employees access to e-mail and the Internet, have created a risk to the general public. And many companies, both in South Africa and abroad, have suffered significant financial loss and brand or reputational damage.
In general terms, employers could be held liable for the following:
- Sending e-mail or Internet communications containing defamatory or obscene material;
- Downloading unlicensed software;
- Copyright infringements, bearing in mind the ease with which material can be found and copied on the Internet;
- Sexual and racial discrimination, often the result of carelessly forwarded e-mails;
- Sexual harassment, usually involving pornographic material or e-mail messages; and,
- Damage caused to others by criminal activities such as hacking.
The risks involved are real. The media is exceptionally quick to take up on any news involving, for example, the sending of pornography to unintended recipients, leading to embarrassment and loss of business value. In many cases organisations are then faced by employees, summarily dismissed for their actions, instituting unfair dismissal claims which succeed due to the fact that the entity in question does not have an Acceptable Use Policy. It is accordingly vital, both from a business and legal perspective, that South African companies start to take steps to proactively manage the risks which they have created through allowing employees access to e-mail and the Internet.
24 Jan 2003
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - firstname.lastname@example.org