Remember when there was a clear difference between “official” corporate communications and casual conversation between employees and vendors or customers? Before long, that dividing line may be nothing more than a memory.
More and more often, courts are ruling that instant messages, tweets, and social media posts by employees are “official” corporate communications with legal and regulatory risks and requirements – whether the communication is authorized or not.
While much has been written on this blog about the regulatory and legal implications of social media, I tend to forget about instant messaging because I’m not a regular IM user (much to my boss’s annoyance, when he wants information while he’s in a meeting and finds an IM the easiest way to reach out).
Recently a vendor asked me for IM contact information so that we could “stay in touch” during the work day, and I had to stop and think about whether or not to agree to the contact before opting not to provide the information she wanted. Why? Because I didn’t have an automated way to back up and archive IM logs, and I didn’t want to create a manual save and archiving burden for myself. (Yes, like email and social media, instant messages are “discoverable”, and must be saved and archived so that they are available in the event of litigation.)
Instant messaging (IM) has changed not only the way employees interact with vendors, customers and co-workers, but also how the courts consider and interpret corporate communications. Courts in several cases have held that when IM is used in connection with business activities – even if the only “connection” is that employees have access to IM tools in the workplace – IM has significant legal implications for discovery and litigation.
In CX Digital Media Inc. v. Smoking Everywhere Inc. (2011), decided by the U.S. District Court for the Southern District of Florida, a judge ruled that an intermittent IM chat that took place over the course of a full day altered a pre-existing written contract. The contract limited the defendant’s payment of sales commissions to 200 units per day, but the IM chat removed the limit, leaving the defendant liable for unlimited compensation.
Attorney Kathy Ossian of Miller Canfield wrote on the firm’s blog that, “The court’s conclusion is remarkable considering the casual tenor of the instant message at issue, which included acronyms, sentence fragments, and slang. For instance, without referencing the existing contractual limitations, the plaintiff’s employee messaged that the plaintiff could ‘do 2,000 orders/day by Friday if I have your blessing.’ Nearly two hours later, after intermittent communications from the plaintiff’s employee, the defendant’s VP of advertising responded, stating only ‘NO LIMIT.’ The court interpreted this as a counter offer that was accepted when the plaintiff’s employee responded ‘awesome’ and increased sales volume. Thus, the employees were deemed to have made dramatic changes to the pre-existing written agreement through informal IM conversation.”
It isn’t the first time that a court has held that IM changes legal agreements. In 2006, the New York State Court of Appeals found that through its employees IM, the defendant, “entered New York to transact business”, thus bringing the company under the state’s “long arm” jurisdiction laws.
As noted above, companies have a legal responsibility to preserve instant messages. This requirement comes about because a number of courts have found that instant messages are a form of “electronically stored information” (ESI) that are subject to discovery in a lawsuit. This responsibility applies to individuals as well as corporations, as do the other requirements to store and archive email, social media, documents, and photographs (including cell phone images).