CYBERSMEAR (Not Something You Put on a Bagel)
April, 2005
Hypothetical
One of your employees at home on her personal computer has created a web log (blog), i.e., a personal diary in which she talks about her life and her experiences. The title of her blog is “Anonymous.” She does not identify herself specifically in any of her entries into the blog. The blog is available on the Internet to anyone who wants to visit Anonymous' blog. She also has links to other blogs. Recently, she has been chatting on her blog about the stresses and difficulties in her life. She has complained about the company. More recently she has complained specifically about management and how employees are treated. She also has alleged that the company's president and COO are having a gay love affair. She claims that the treasurer is spending company entertainment money on extravagant and wild sex parties.
One evening while surfing the web, you come upon Anonymous' blog. The comments on the blog about the company and its management and the way the company treats employees all cast your company in a bad light. You mention your discovery to your boss the next morning who shrugs it off saying: “well we don't know who it is and they are doing this at home apparently on their own time. Not much we can do about it.”
Question: Is that the end of the road? Is there nothing that the company can do?
Discussion
The company can take legal action. However, Internet speech is protected as free speech when an individual is expressing personal opinions according to the Supreme Court. Furthermore, the anonymity of the person speaking on the Internet is protected. Just as authors of books
can remain anonymous or use pseudonyms, someone writing on the Internet can do so with the same protections.
Over 20 plus states also have specific legislation intended to protect the anonymity of individuals exercising free speech, on the Internet under statutes known as Anti-SLAPP Laws (“Strategic Litigation Against Protected Practices”). Furthermore, Internet Service Providers (ISPs) sometimes will protect the anonymity of their customers, i.e., persons who use the Internet Services to conduct free speech activity. ISPs sometimes exercise this protection even though a customer as a subscriber to the ISP's services will sign an agreement acknowledging that the ISP can disclose their name if litigation ensues.
Successful Countermeasures
Employers can overcome those obstacles, particularly where the employer can show some real damages and likelihood of success on the merits of a legal cause of action. In the numerous states in our country in which “employment-at-will” reigns, there is even more hope. “Cybersmearing” employees also are vulnerable under numerous common law causes of action from breach of contract to defamation to tortious interference with business, violations of confidentiality, trade secrets, false light and others. An employer can bring successful legal action to uncover the identity of the anonymous employee and, where appropriate, also seek an injunction against the Cybersmear activity and/or terminate the employee.
No Problem! Our Company Internet Policy Is Enough Protection. Right?
Better take a closer look before you stand behind that shield too confidently! Courts recognize something very fundamental in the protection of a person sitting at home expressing their opinions even when they say things very damaging against their employer. Particularly so, with today's generations born and bred on Internet chat, which they believe to be just as fundamentally their right as if they were sitting around the kitchen table at home with family venting their feelings about their employer. In addition to free speech, some state statutes protect personal private activities of employees off work.
So, once again, carefully look at your Internet policy, it probably needs to be fine tuned. Training and education also are important, so that employees understand, “from the get go”, that they cannot speak out against the company in public if what they say will harm the employer's image, reputation or business. And, yes, this applies even if the Cybersmear is done at home or while sitting in a coffee shop pecking away at their laptop computer.
Practice Tip: “An Ounce of Prevention...”
Companies can protect their public image, reputation and trade secrets from Cybersmearers. But, in the attempt to uncover the anonymous Cybersmearers, the employer must carefully choose the right legal tools.
• Adjust the language of your Company's Employee Internet Policies.
• Train employees.
• Avoid invading secure websites of employees.
• Watch out! Be careful not to step over the line into violations of:
>Sarbannes-Oxley Act,
>Federal or State Whistle Blower Statutes, or
>The National Labor Relations Act.
Jim Barber is chair of our Employment Practices Group.
Jim co-chairs the American Bar Association's Sub-Committee on Technology, Employee Rights and Responsibility. Jim also has spoken and written on the topic of Cybersmearing.
Call Jim for further information at (312) 606-7712 or e-mail Jim at jbarber@clausen.com.•
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