The Need for Systematic Integration of Legal Considerations in Communications Technology (CT) Management in Contemporary Organisations

摘要

CT management is primarily seen as a technical and logistic issue. After the technical and logistical dimension, the accountancy/managerial dimension usually comes next. However, the legal context of CT is extremely important. Because of the focus on the other factors, legal considerations are often considered on an ex post facto basis. Often law is perceived to be a reactionary force, and one which need not be considered at an early stage of organisational enterprise. The Microsoft antitrust experience revealed that despite its resources, the company was vulnerable to attack for having transgressed very basic rules. Its CT management contributed towards the evidence against it. Indeed, a lack of sophisticated input into the CT management operations may even be the very cause of antitrust breach. When one considers that a company which is found to be in breach of antitrust provisions in the European Union (EU) may be fined up to ten per cent of its gross turnover per annum, considered on a world-wide basis, one can appreciate the benefits of getting it right. This is so irrespective of where the breach occurred, under the notion of 'extra-territo-riality" as developed by the European Court of Justice (ECJ). When one considers in addition, data protection, privacy, freedom of information, defamation, contractual liability, employee protection, trade secrets, copyright, patents and confidential information dimensions, it becomes clear, that many CT management systems will not probably be optimally orientated to deal with them. In many countries, the legal advice in these relatively new contexts will be weak, due to the slowly adapting nature of the national, legal professions. This paper argues that the dynamic, legal context of CT management in contemporary organisations, requires a sophisticated ex ante approach. In view however of the conservative nature and expense of many legal professions and services, it is submitted that it is imperative for organisations involved in CT management to engage with legal discourse in the area of CT. It is imperative for such organisations to build up a proactive, legal-intelligence capability. This capability must be embedded in a practical, adaptive and contemporary way in such organisations. But beyond the operational context, contemporary organisations which are leaders in different fields of CT management must also develop legal information management products. Thus CT management experience, may be turned into commercially saleable products and services. Accordingly, the presently perceived burden of regulation may be turned into opportunities. This paper will accordingly sketch the relevant legal contours that contemporary organisations operating in a global context must bear in mind, from a CT management perspective. It will then suggest how these considerations should be embedded in the organisation in a prophylactic way. From there it will proceed to illustrate how the adoption of such a strategy should yield benefits, in avoiding liability. It will then suggest how such systems may be turned into products which might be sold.