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Due to Covid-19 and social distancing, we now have no better alternative to videoconferencing.  It has essentially become the new default for meetings, but this has brought about a very serious question as to whether Zoom or other video conferences are safe for lawyers, doctors, government organizations and others to use. 

To date, a number of law firms (including ours), doctors and government Commissions have started to use Zoom, Webex or other videoconference applications for their meetings, consultations and even mediations. Some have gone very smoothly and others,… well,… not so.  My most recent mediation went extremely well where a mediator with one of Quebec’s Commissions used the Zoom webinar and allowed the parties at times to have “break-out rooms” and later reconvene back together.  It was quite seamless and very efficient (especially since we reached a relatively quick settlement).

That said, not all video conferences are created equally. However, what is common to each application is that they all involve certain risks regarding privacy breaches, phishing attacks and other potential liabilities to the users.  Despite these risks, many of us have no alternative and must work within these constraints.

For doctors using the technology for telehealth (if permitted by their medical regulatory authority), a patient’s personal health information must at all times be protected but there are a number of other issues to be concerned with, not the least of which is to determine whether a videoconference consultation is appropriate and will enable the physician to meet the standard of care.  A doctor’s liability grows with each consultation and expands when considering a prescription for a patient.

For lawyers, we must remember that we are also bound by our professional duty to hold in strict confidence all information concerning the business and affairs of our clients in the course of the professional relationship.  This duty would naturally extend to the tools we choose to use when communicating with our clients and with others in confidence about our clients.

Presumably, the retainer agreement used with our clients will incorporate an authorization to use electronic communications (via the Internet and cloud-based technologies) and include a limitation of liability clause as to the security features and risks involved. While helpful, this does not necessarily absolve lawyers from taking certain steps to address the potential security risks where it is reasonably possible to do so.

Here are some advance measures and precautions that are recommended when using video conferences:

• Make sure you have suitable technology, including proper audio-visual connections and high-speed internet. Dropped invitees or choppy connections are never pleasant experiences.

• Review how the video conference recordings work, data retention clauses from the provider and pay attention to risks involved such as Video Bombing (where uninvited strangers crash a meeting). 
• Prepare a list of backup phone numbers for each invitee, in case the event communications are interrupted.
• In your email invitation, include the following:

the link to the conference app (such as Zoom, Webex, Microsoft Teams, etc).  There are many fake applications around that are actually dangerous malware.

a warranty exclusion and limitation of liability clause that includes:

1. warnings regarding the risk for hacking and “video bombing”.
2. warnings regarding the risks of intellectual property infringement.
3. a limitation of liability clause that identifies and limits your liability for other possible risks.

a recommendation to avoid exhibiting documents and instead send them through secure encrypted email.

a notification to participants that they may not record or redistribute anything provided in the video conference (including when the whiteboarding feature is used).

a notification to participants not to specifically show or allow others to view any third-party copyrighted material, trademarks or other proprietary rights without first obtaining the prior written consent of the owner.

[however, there can be ways to share copyrighted work without necessarily infringing, including posting insubstantial excerpts or using the fair dealings exception]

• Take reasonable steps to protect your video from “Video Bombing”, including:

only send out links to already known email addresses.

make sure you are using a reputable video conference provider.

as the administrator of the conference, you should:

1. take advantage of the “waiting room” feature, if available.
2. use strong passwords and avoid sharing meeting links.
3. constantly pay attention during the session that no uninvited guest is joining.
4. avoid screen sharing, unless absolutely necessary, due to the risk of having others view your confidential emails or documents. 
5. if you must use screen sharing, make certain email and other applications are closed including your pop-up email notification! (that’s a sure way to accidentally disclose the identity and possible mandate of a client)

Videoconferencing can help boost productivity, save time and reduce expenses.  By taking certain reasonable and relatively easily implemented precautions, you can benefit from the technology while avoiding an embarrassing moment that may also involve your potential liability.

This article was originally published on Thelawyersdaily.ca