File sharing law prompts business IT policy adoption

The Copyright (Infringing File Sharing) Amendment Act has prompted some businesses to implement computer and Internet use policies.

Steven Dukeson of Dukeson’s Business Law sent out an update regarding the file sharing law and businesses’ liability for employee misuse on the company Internet account, and said while responses to this update had not been “deafening”, there had been some enquiry from clients, as well as other lawyers and accountants on behalf of clients, asking for general policies about Internet and computer use that covered the new law.

Lowndes Jordan partner Rick Shera said clients had heard misinformation about potential liability which had spurred them into action.

“Many we are finding have no Internet use policies at all, so this provides the ideal opportunity for that discussion to take place with employees.”

Chapman Tripp principal Justin Graham said the firm had had a number of enquiries from clients about the new law, but that most were significant businesses with in-house legal and IT resources.

“Our role has more been to double check what these businesses are intending to put in place.  Some smaller clients had had questions  about how the legislation works, but we haven’t noticed any major panic.:

Mr Dukeson said in his experience, most businesses would not implement policies because of the cost involved, with any cost at the moment an unwanted cost for most New Zealand businesses.

He said the amendment was something to worry about legally since it added an extra layer of liability for the employer.  He said he thought it was “absolutely vital” for businesses that relied on using computers to adopt policies for use since without them, it was unclear how a business could deal with employee use of computers.

Mr Dukeson said such a policy would help if an employer was taken to the Copyright Tribunal, the enforcement stage of the warning process implemented by the Copyright Amendment Act.

“It’s important to show that you’ve done what you possibly can.”

Department of Labour Labour Group business process and innovation general manager Tracy Mellor said while there was no legal requirement to have a policy outlining correct Internet usage, having such a policy would provide clarity for both employers and employees.

“An employer could consult with their employees about the content of such a policy if they wanted to introduce one.”

Ms Mellow said such a policy would have to be clear that dismissal without notice was a possibility and that disciplinary or dismissal policies and processes would need to be followed.

“There must be a good reason for a dismissal and the dismissal must be carried out fairly. Employers and employees are obliged to deal with each other at all times fairly, reasonably and in good faith.”

She said the parties’ employment agreement could contain a clause saying the employee agrees to indemnify the employer against any penalty, and authorises the employer to make a deduction from the employee’s wages to reimburse the cost, but that employers could not make deductions without written consent from the employee.

“However, an employee can vary or withdraw their consent by giving the employer written notice.”