The internet has rapidly become the primary mode for communicating and receiving information in contemporary society. In the last few years, millions of people have connected to websites, blogs, or other instant messaging forums to communicate with, or obtain information from, other users. The benefits of the new medium are obvious.
But there is a darker side to these technological advancements. The anonymity which internet sites provide creates the opportunity to make statements which are threatening, demeaning, defamatory, or otherwise problematic. The law has been struggling to keep up with these changes, and recent court cases have begun to provide some guidance regarding regulation of these activities.
In Stengart v. Loving Care Agency, The New Jersey Appellate Division recently concluded that an employer overstepped its bounds by retrieving a former employee's confidential internet communications with her attorney on a company computer. The employer had provided the employee with a laptop computer to help her perform her responsibilities. A handbook distributed by the company informed all employees that the computer was for business only usage, and that any communication made on that computer was the property of the company. The handbook recognized, however, that "occasional personal use is permitted".
Just prior to being fired, the employee had begun to gather information to support a potential lawsuit against the employer. She shared that information, and other communications, with her attorney over the internet. After she was fired, the employer seized the laptop computer and was able to extract all of the prior communications. It then attempted to use some of the communications against the employee in the subsequent lawsuit.
The court held that the mere fact that the computer was provided by the employer did not convert every message on the computer into company property. Recognizing that computers today can be utilized to access tax returns, medical records, intimate personal conversations, and other communications in which the employee has a privacy interest, the court concluded employee handbooks must be tailored to protect the legitimate interest of the employer. Moreover, ambiguity in handbook language should be resolved against the employer, since the employee must communicate clearly permissible or impermissible usage.
As a result, the court concluded the employer did not have the right to obtain or retain the email messages between the former employee and her attorney, even though the communications were conducted on the employer's computer. The court was careful to point out, however, that the employer can certainly terminate an employee for the improper usage of company property. In other words,a company can fire its employee for using work time to conduct private internet activity. Retaining the actual messages that the employee sent, however, is an entirely different matter.
Obviously, the case raises as many questions as it resolves. For current purposes, however, it is critical that employees understand that an employer can access a company supplied computer, and can learn both the amount of usage, and type of usage in which the employee engages on work time. The employer can also terminate an employee for spending time surfing the web at work. Checking whether the employer has a policy regarding internet usage or any claimed right to the employees email messages is an important step in protecting job security.
In two other recent cases, the courts have spoken on whether an employee can be terminated for private and personal internet usage which affects the employer's interest or that of its employees.
In Matter of Smith v. City of Newark, a police officer accessed a blogging website called "Newark Speaks". The officer would log on anonymously and make defamatory statements about superior officers, contending they were thieves, pimps, crooks and other demeaning characterizations. The officer never identified himself, and assumed-mistakenly- that his identity would never be known to the City. To the contrary, Newark officials were monitoring the website, and obtained a Grand jury subpeona to compel the internet provider to disclose the names of the users. Eventually, Newark learned the identity of the officer who was making the anonymous postings. The City then fired the officer. The case went to trial and the court upheld the termination. It concluded that employers have a legitimate interest in precluding defamatory or scandalous statements made by its employees on a publicly accessed website. This is true even if the postings occur off duty on the employee's own computer.
A similar result was reached in Nicosia v. City of Belleville. There, a town employee posted a statement on a website that "all of the city cops should be shot in the head". Again the employer was able to obtain the identity of the individual, and terminated him. The court rejected the claim that an employee's off-duty internet usage as of no concern to the employer, and upheld the termination.
While these cases are clearly not the last word on the subject, thay provide some guidance about the rosks associated with defamatory or threatening statements on internet websites.