E-Communications May Come Back To Haunt You

Metropreneurial Legal Insights — By on August 15, 2013 at 8:00 am

If you are running an entrepreneurial business, you are likely working virtually around the clock, doing the work that ideally several people would be doing, and trying to juggle a number of different demands on your time and attention. Anyone in those circumstances would understandably be unable to devote enough attention to each and every task they performed for their business, so it is not surprising that you sometimes send a quick text or instant message to get something off your plate, without really thinking about the consequences.

You are not alone in doing so. Businesses are increasingly communicating through electronic means like social media websites, texts and instant messages. While these methods of communication are quick and efficient, they can also create new problems if you unwittingly say things that may get your company in hot water. Bill Nolan identified many of these potential problems in last month’s column.

Doug Oldham

Doug Oldham

When people draft more formal documents like business letters and contracts, they tend to think things over before they start writing. They write more slowly, proofread what they wrote, or even get a second opinion on their draft. They are very aware of what they are saying before they send it out into the world. However, modern electronic communications make it increasingly easy for you to hit send without proofreading or thinking through what you are saying. And they also make it increasingly acceptable to speak in an informal manner. Both of these actions can get your business in trouble if you aren’t careful.

For example, did you know that you can unwittingly create or modify a contract through your electronic communications? A contract isn’t always a formal, signed document, and digital-age communications advances have broadened what communications might be considered contractually binding.

In a recent court case, the judge ruled that a company changed the terms of a contract it had with a partnering company based on a brief, seemingly harmless instant message conversation. A company employee was engaged in an instant message conversation with the partner company when someone at the partner company suggested raising the stakes of their agreement. The company employee responded with two words reacting positively to the suggested change. This response was not a formal legal document, or even a full written sentence, and the company employee likely did not know he would be held to his response, but the court nonetheless found that this quickly dashed off, informal-looking, two-word response to the partner company was enough to accept these changes and to modify the contract.

Think about that. Just two quick words in an instant message conversation can leave your company on the hook for financial, production or other obligations you probably weren’t expecting. That is part of the risk of instant communications. We don’t always take time between typing and hitting send to proofread what we have written and to make sure we are sending the message we intend to convey. We also don’t always take time to run the message by a lawyer with expertise on the subject matter before hitting send. Finally, because of the informality of social media and instant messaging, we don’t always grasp that serious consequences can come from the things we say through these communications methods.

Be careful when you talk to customers and vendors and don’t assume that just because you’re texting, instant messaging or using another form of electronic media that your conversation is informal. Talk to your lawyer and decide what steps you can take that will best protect your company. Here are a few suggestions:

  • • For certain job functions, you may want to change your smart phone’s email signature or instant messaging signature to include a disclaimer that such messages do not constitute an offer or acceptance of a contract.
  • • Talk to your team and make sure no one who works for you says something they shouldn’t, just because they aren’t aware of the consequences.
  • • Include in your contracts some requirements for what constitutes a valid modification that would preclude a simple email from doing so.
  • • Most importantly, slow down. The few minutes you may save by quickly and mindlessly sending a text or instant message may cost you far more down the road if you aren’t careful.
Doug Oldham (4 Articles)

Doug Oldham is an attorney in Barnes & Thornburgs Labor and Employment Law Department. He concentrates his practice on employment litigation discrimination.


Leave a Reply

You must be logged in to post a comment.