|
Communications Guidelines For
Astronomical League Representatives
Public communications are a rich source
of legal liability in today’s society. Public
statements can give rise to claims of defamation, invasion
of privacy, intentional interference with contract,
interference with prospective economic advantage, copyright
infringement and negligent or intentional infliction
of emotional distress—among many others.
Each of us, as individuals, can be
held liable for our public statements. And your organization
can be held liable for the public statements made by
officers and representatives who are acting, or appear
to be acting, in their official capacities. Therefore,
the League offers these Communications Guidelines to
help its national and regional officers, its committee
and activity chairs, its representatives and their counterparts
in member societies better understand where some of
these dangers lie ... and how to avoid them.
While these guidelines cannot guarantee
freedom from liability, adherence to these guidelines
can greatly reduce risk to you and your organization.
What Is A Public Communication?
These guidelines apply only to "public
communications." "Communications" include
all written or oral statements and utterances, and all
visual or aural presentations, which are heard, read
or seen by other persons. Communications include such
things as private letters, e-mail messages, computer
forum postings, personal conversations, speeches, television
and radio appearances, telephone calls, interviews,
letters to editors, written articles, videotape presentations,
advertisements, promotional literature and public exhibitions.
If you say it, write it or display it and some other
person hears it or sees it, it is a communication.
In the organizational sense, a communication
becomes "public" when it is shared with any
person not having an official "need to know"
the content of the communication in order to do his/her
job.
The Guidelines
No officer or representative of the
Astronomical League or its regions, committees, activities
or member societies, acting in an official capacity,
should publicly communicate with any person where it
is reasonably expected that the effect of the communication,
either directly or by implication, will be to:
- accuse any person of wrongful, illegal
or unethical conduct;
- question any person’s honesty, competence
or morality;
- cause any person to be viewed in a false
light;
- attempt to damage, inhibit, disparage or
limit the success of events, products or activities
of another person or organization;
- encourage or induce a person to breach
an existing contract with another person or organization;
- make malicious, false or reckless statements
about any person or organization;
- embarrass any person publicly;
- transmit material which is potentially
offensive to any person on the basis of sex, race,
color, national origin, religion, disability or age;
- transmit material which is obscene or offensive;
- reveal private personal facts about any
person without their express permission; or
- publish, copy, reproduce, distribute or
transmit copyrighted material (including the public
exhibition of videotapes, articles, art, photos etc.)
without the written permission of the copyright holder.
Privileged Communications
Organization officials enjoy a legal
defense, called a "qualified privilege," to communicate
frankly among themselves about the organizational issues.
This means they may be able to communicate among themselves
if everyone in the meeting has an official need to hear
the communications in order to discharge their organizational
responsibilities -- e.g. a board member has the
right to discuss an issue affecting the organization
with other board members and with the organization's
attorney or accountant.
Internal communications, however, can
lose the benefit of this qualified privilege if (a)
the communications are shared with even one person not
having a need to know about them or if (b) the communications
are made maliciously or with knowing or reckless disregard
for the truth.
Truthful Communications
Technically, truth is a complete defense
to a defamation claim. Truth, however, is in the eye
of the beholder and the defense of truth is only useful
if one is willing to establish the defense in prolonged
and costly court proceedings. Further, truth is not
a defense to certain other claims, like invasion of
privacy.
There will be times when you must make
truthful statements even though they may violate some
of these guidelines. If so, protect yourself and your
organization by (a) seeking approval from the organization,
(b) seeking advice of counsel if the communication is
particularly likely to create risk and (c) making sure
you can prove every element and implication of your
public statement. For example, it is a lot safer to
accuse someone of "unauthorized possession" of your
bike (requiring proof that he had the bike and did not
have permission to have it) than it is to accuse someone
of "stealing" your bike (requiring, in addition, proof
that he intended to permanently deprive you of it).
If he claims he borrowed it and you accuse him of stealing,
you may be defaming him.
Electronic Mail
A recent phenomenon of interest to
psychologists is the almost universal tendency of people
to treat e-mail as face-to-face conversation. People
tend to be unusually abrupt in writing and responding
to e-mail. They ignore the important buffers of tone,
expression and body language which temper face-to-face
conversations. And, people copy their e-mails to dozens
of people who would not otherwise be privy to a face-to-face
conversation. The usual result is an e-mail storm which
becomes widely disseminated and
serves as fertile ground for hurt feelings,
anger and even legal liability. Because people tend
to speak with incredible candor in e-mail communications,
attorneys have found e-mail to be of extraordinary value
in legal proceedings and routinely discover or subpoena
electronic records (even deleted ones).
E-mail is, in reality, a form of written
communication just like a letter, and it should be treated
as such. If you are angry when you type an e-mail, put
your response in your electronic "outbasket" and read
it again the next day ... as you have undoubtedly done
with letters which were written in anger and never sent.
With letters, you have a built-in cooling off period
– you have to get to the mailbox the next morning. With
e-mail, that time buffer is not there – you just hit
"Send."
Avoid over-copying your e-mail. It
is a lot safer to criticize the addressee of your e-mail
if you do not send a copy of your critique to the entire
Free World. Nothing will anger your recipient more and,
once again, it will increase your risk, and your organization's
risk, of litigation.
The rule is simple. Do not say anything
in an e-mail message that you would not be happy to
see placed in front of a jury box or the person you
are writing about. Remember – what we say to third persons
is not privileged and, if unfortunately phrased, public
communications can create needless hostility and misunderstanding.
Even one blunt e-mail to a friend can become a problem
if it gets forwarded repeatedly to persons increasingly
less sympathetic to your views.
E-mail communications should never
be viewed as private and, when sent to non-privileged
individuals, should never contain material which exceeds
these guidelines. Even when sent to privileged individuals
(those having a "need to know" in order to discharge
their official positions), messages arguably violative
of these guidelines should be plainly marked "CONFIDENTIAL
AND PRIVILEGED; DO NOT FORWARD". Many e-mail recipients
will honor this type of instruction. At the very least,
the instruction may stop someone from forwarding the
message thoughtlessly.
A Note About The Guidelines
These guidelines are not offered to
create censorship or to violate anyone's free speech
rights. They are offered to help our representatives
avoid personal liability and, at the same time, to help
protect the organization as well. Second, Constitutional
free speech rights do not apply to the League or to
other private organizations. Finally, these guidelines
are not intended to limit the public statements of rank-and-file
members – they only apply to the public statements of
persons holding official, elected or representative
positions, i.e. people who reasonably appear to the
public to be speaking on behalf of the organization.
If representatives are unsure whether
a proposed communication might violate the guidelines,
the safe course is to contact an officer of the organization
first. That way, the organization has a fair opportunity
to review, modify or seek legal review of communications
for which it might later be held liable. If representatives
insist on making communications which exceed these guidelines,
the representatives should mention in their communications
that they are speaking strictly as individuals and not
in their official capacities ... and the organization
can then publicly disclaim or disavow the communication.
These Communications Guidelines are
not to be used, adopted or relied upon as legal advice,
as a complete list of conduct giving rise to potential
liability or as a substitute for private or organizational
legal consultation. These Guidelines may, however, be
freely copied, modified and adopted by League member
societies and members in order to meet their specific
needs.
|
