Book reviews

Email, Social Media and the Internet at Work

Stephen Mason

PUBLISHER: PP Publishing
ISBN: 978 1858117232
PRICE: £29.95

This practical and helpful book would be of value not only to HR colleagues but also to anyone who uses any of the modes of communication referred to in the title.

As the author, a renowned expert on the law surrounding electronic evidence, and who has written and taught extensively on it, acknowledges: "Communicating has become effective and efficient. Sometimes, however, that carries great risks." Anger or frustration has perhaps got the better of us and we lose our perspective. As some who have faced the criminal courts find (Kilpatrick v HM Advocate 2014 SCCR 504), where the mode of communication is on Facebook, it amounts in law to standing in the street for everyone to hear your pronouncement, except of course, in that scenario, you have some degree of control of your intended audience.

Mason considers "networked communications", defined as "any method that is used for communicating in the virtual world". This is the keystone. He refers to reported cases, some from the media, where there may be a breach of someone's personal data by a colleague, say from their mobile phone left on a desk without any password protection, who then distributes that data over their employer's network. The arguably unlawful recovery of personal information is neither here nor there, as the personal and reputational damage is done, and loss of employment may follow.

The author sums this all up neatly when he writes: "The interesting point about networked communication is how people use them. In essence, email, instant messaging and other forms of communication are a duplicate and distributed technology – the two most important words that many people fail to grasp." The author then considers the topic in neat chapters ranging from types of misuse, monitoring of networks and storing of networked communications to the respective liability of employer and employee. He then deals with the evidential aspects of a networked communications policy. Along the way he makes reference to case law from the three jurisdictions of the UK, as well as the United States, the Court of Justice of the European Communities and the European Court of Human Rights.

This is a wide ranging book of real practical value. Issues such as the employer's duty and liability under legislation for cyber bullying are considered. There is also reference to the employment practice codes from the Information Commissioner on the best practice and guidance on monitoring of employees' data. There are not only reputational issues but financial concerns, such as Glasgow City Council being fined £150,000 following the loss of two encrypted computers said to contain personal information on over 20,000 people.

This book offers practical guidance and advice, rooted in law and examples, and should be regarded as essential reading for the widest audience possible. Employers have duties and responsibilities, but so do employees, and we also owe it to ourselves to be aware of where, and what, we write.

Deferred Prosecution Agreements: The Law And Practice Of Negotiated Corporate Criminal Penalties

Polly Sprenger

PUBLISHER: SWEET & MAXWELL
ISBN: 978 0414033979
PRICE: £145

This book provides a very helpful guide to deferred prosecution agreements (DPAs), as set up in England & Wales under the Crime and Courts Act 2013 (commencement was on 24 February 2014). A DPA is defined in sched 17, para 1(1) to the Act as “an agreement between a designated prosecutor and a person (P) whom the prosecutor is considering prosecuting for an offence specified in Part 2 (the alleged offence)”. Paragraph 1(2) indicates that “under a DPA– (a) P agrees to comply with requirements imposed on P by the agreement; (b) the prosecutor agrees that upon approval of a DPA by the court… is to apply in relation to prosecution for the alleged offence”.

Schedule 17, para 2 broadly sets out a procedure whereby an indictment is raised against the company (only companies can enter into a DPA, not individuals) but suspended and abandoned if the agreement is fulfilled. DPAs require to include an agreed statement of facts and an expiry date and may also include terms relating to (i) payment of a financial penalty; (ii) compensation for victims; (iii) donations to charity; (iv) disgorgement of profits made from the offence; (v) implementation of a compliance programme; (ii) co-operation in investigation of any offences by individuals; (vii) payment of reasonable costs.

DPAs can be made in respect of a wide range of offences related to economic crime, as set out in sched 17, part 2, including fraud, theft, money laundering and bribery.

The book has a helpful introduction which outlines why DPAs were introduced, provides a summary of the legislation and sets out how it is anticipated that DPAs will work in practice. At various points throughout the book the system brought in under the 2013 Act is compared and contrasted with those in other jurisdictions, especially the USA, where the use of such agreements has been pioneered and most closely scrutinised.

There is a chapter devoted to the issues around corporate criminal liability in England & Wales, the perceived limitations of which arguably make the introduction of DPAs a helpful tool in combating serious economic crime. At the same time there is a recognition of the potential dangers, in terms of a perception of large companies buying off justice, and of ensuring that any system which involves prosecutors seeking to reach agreement with companies, whereby they accept responsibility and provide recompense for any wrongdoing, is transparent and accountable.

Drawing on experience from the USA, the system introduced seeks to build in safeguards for all parties, with clear guidelines for prosecutors, safeguards for companies who wish to enter into a DPA, and protection for the public. This is achieved principally via active supervision by the courts at two crucial stages of the process, when a DPA is broached and when it is finalised (there is a greater role for the court than in the USA). While there are a number of potential problems, the authorities in England & Wales appear to be keen to adopt DPAs in appropriate cases. The Director of the SFO and the Director of Public Prosecutions have issued detailed guidance (included in the book) as to how they will operate the scheme.

In terms of the structure of the book, the author helpfully sets out the background to the introduction of DPAs (chapters 2-4), and the legislation and guidance (chapters 5-8), followed by a detailed account of how it is anticipated DPAs will work in practice (chapters 9-16). This includes a helpful chapter (12) on issues to do with legal privilege. The final chapter indicates the (thorny) issues which will attend “global” settlements involving prosecutors in several different jurisdictions.

I would mention a few criticisms. The first is that the author does not make clear that DPAs do not extend to Scotland or Northern Ireland. She repeatedly refers to “UK” prosecution agreements and UK models, judgments, guidance etc. Ironically, when she compares the DPA legislation to that relating to bribery offences (at p 61, para 2.75), she states that the bribery legislation relates to England & Wales, when in fact it extends to the whole of the UK.

Secondly, at paras 2.80 et seq the author discusses whether it would be helpful to extend the law to include corporate liability for failure to prevent certain offences (as per s 7 of the Bribery Act). This proposal appears worthy of further consideration, but the suggestion at paras 2.88-2.93 that it can be achieved by extending s 7 of the Bribery Act to all the offences covered in sched 17, para 2 of the Crime and Courts Act (via secondary legislation!) seems very odd.

Finally the edition of the book which I saw had a number of formatting errors – see, e.g. pp 6, 18, 46, 134 for some egregious capital letters, and p 321 for a repetition of the phrase “he was charged”.

Overall, the author combines a detailed account of the new scheme, which provides a reference point for anyone who wishes to know the relevant law/guidance, with analysis of the purpose DPAs are meant to serve and some of the issues which will be thrown up in their operation, e.g. around legal privilege. At the time of writing, August 2015, it appears that no DPAs have been entered into, so it is not possible to evaluate any cases in practice, but anyone wishing to know more about DPAs, and how they are likely to work, would benefit greatly from recourse to this book.