Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

When anonymous speech is “commercial,” which typically will be the case when employers or executives come under attack, a trial court should apply a balancing test. The test weighs the anonymous speaker’s First Amendment rights against the “need for relevant discovery,” recognizing the "great potential for irresponsible, malicious, and harmful communication" and that particularly in the age of the Internet, the "speed and power of internet technology makes it difficult for the truth to 'catch up' to the lie." Although future application of these high-level principles is difficult to predict, the Ninth Circuit’s new approach to “unmasking cases” almost surely will result in greater success for employers and executives seeking to unmask anonymous speakers on the Web.

While savoring this victory, employers should keep in mind that litigation against anonymous speakers on the Web can be expensive, time consuming, and distracting. In many circumstances, the victims of an anonymous attack will be better served by letting the offending comment become lost in the daily flood of information on the Internet.

This entry was written by Philip L. Gordon and Christopher M. Leh.

Photo credit: rtiom

Question: What if employees are using their cell phones for social networking, not utilizing company technology? And what if they are doing it on their own times: breaks and lunch?

Response: Employers can establish guidelines for employees’ off-duty social media activities even if employees are using their own cell phones, laptops, desktops, or other personal devices. As discussed in the webinar, there are several laws that might restrict an employer’s ability to take adverse action based upon an employee’s off-duty social networking activities. These laws include, for example, the National Labor Relations Act, state laws that prohibit adverse action based on an employee’s lawful off-duty activities, the First Amendment for public employers, and anti-discrimination laws.

Question: Can you expand upon the scope of First Amendment protections and the Connecticut law that you mentioned during the webinar?

Response: One common misconception is that the First Amendment protects all employees against adverse action based on their speech. In fact, the First Amendment protects only public employees. However, Connecticut has an unusual law (Conn. Gen. Stat. 31-51q) that extends First Amendment protections to private employees. A private employer violates the law by terminating a Connecticut employee on account of that employee's exercise of rights guaranteed by the First Amendment--provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer.

Question: Can employees assume that because the company hasn't blocked a social site from being accessed that it must be okay for them to use it during the day?

Response: Employees might make that assumption if the employer does not have any policy addressing Internet use generally or social media use in particular, or if a general Internet policy permits incidental non-business use of the employer’s Internet access. An employer can defeat the assumption without blocking access to social media sites by specifically informing employees in a policy that use of the employer’s electronic resources to access social media sites for non-business purposes is prohibited. For the policy to eliminate an assumption like this one, management and human resources professionals need to communicate about, and consistently enforce, the policy. In this regard, HR and managers should work together to remain well versed on best practices and ongoing developments in this area.

This entry was co-written by Philip L. Gordon and Kevin P. O'Neill.

Dynadot, a small company not interested in a protracted legal battle, stipulated to a permanent injunction that required it to shut down the website instead of fighting the Bank. Judge Jeffrey White of the federal district court in San Francisco signed the stipulated permanent injunction. The Bank dismissed its lawsuit against Dynadot with prejudice, and Dynadot shut down the website. The Bank appeared to have silenced its disgruntled vice-president, quickly, quietly and at minimal cost.

But the next day, Wikileaks was up and running through multiple mirror sites. Mirror sites use a similar domain name that is registered through a different domain name registrar. Wikileaks, for example, also used the domain name Wikileaks.cx through a domain registrar in the Christmas Islands. Wikileaks posted the Bank’s confidential documents on these mirror sites. 

Within the week, the New York Times, while neglecting to mention the agreement between the Bank and Dynadot, reported that Judge White’s approval of the stipulated permanent injunction “present[ed] a major test of First Amendment rights.” Also failing to mention the agreement between the parties, blogs buzzed about apparent constitutional violations. 

Not long after publication of the Times article, heavy hitters such as the ACLU, Project on Government Oversight, and the Electronic Frontier Foundation, came out with statements against the Bank. In response to their court papers, Judge White abnegated the agreement the Bank had negotiated with Dynadot, dissolved the permanent injunction, denied the Bank's request for a restraining order, noted the injunction may involve impermissible prior restraints, pondered whether an injunction would serve any purpose and questioned whether the Court had subject matter jurisdiction to hear the dispute. In the meantime, the Wikileaks site, complete with the Bank's stolen documents, is still up and running. On March 5, 2008, the Bank voluntarily dismissed its lawsuit, apparently concluding that litigation was no longer worth the cost.

Employers should view the Bank’s experience as a cautionary tale. What started as a quick agreement and apparent resolution literally, as the saying goes, ended up on the front page of the New York Times. The case also shows how quickly journalists will publicize a story that can be portrayed as “an attack on the First Amendment.” Sometimes filing suit is not the best way for an employer to protect its interest.

In Krinsky, the court announced a new test applicable in California (where many Silicon Valley-spawned ISPs happen to be located) for deciding whether a subpoena seeking to uncover the identity of an allegedly libelous poster should be quashed. The defamation plaintiff must (a) show that she tried to notify the anonymous or pseudonymous poster of the subpoena — for example, by posting a notice on the blog where the cybersmear appeared, and (b) establish a prima facie case of defamation.

In most circumstances, Point (b) means the target of the cybersmear must establish that the libelous statement is factual (as opposed to non-actionable opinion) and that the libel damaged the plaintiff, e.g., caused plaintiff to lose her job or damaged a customer relationship. These standards can be difficult to satisfy. In Krinsky, for example, the court held that the cybersmear fell “into the category of crude, satirical hyperbole which, while reflecting the immaturity of the speaker, constitute[s] protected opinion under the First Amendment.” Even if a plaintiff, like Krinsky, is the target of an outright factual lie, she often will find it difficult, if not impossible, to link any economic loss to what most likely is a relatively obscure Internet post.

Krinsky teaches that in most cases the target of cybersmear is better off turning the proverbial other cheek (or finding a padded room in which to vent) than resorting to the court system for relief. Eventually, the scurrilous diatribe will be washed away in the muck of self-expression that fills the Web.