Social networking lawsuits have been around longer than we think. It’s now common to hear about a lawsuit where someone on medical leave posted vacation photos to Facebook that resulted in termination or a case where a drunken manager posts something inappropriate to Facebook and an employee quits over it (here’s the actual status update). While we might think this is a recent phenomenon given the meteoric rise of social networks over the past few years, it turns out these lawsuits have been happening for quite some time.
As I’ve mentioned before, I’m teaching a class about social media law at the University of Texas School of Law. Last week’s module was about employment legal issues with social media and I was lucky enough to have two guest speakers who deal with the subject on a regular basis. Besty Chestney spoke about her experience in a law firm advising companies of various sizes and attitudes about employment issues connected with social media while Joe Miguez spoke about his perspective with the same issues from an in-house angle. Later, Joe brought this case to my attention as perhaps the first employment lawsuit dealing with social networking issues.
The case was Hillstone Restaurant Group v. Pietrylo and the case was decided by a jury back in 2009 but dealt with facts that took place back in 2006. It dealt with an employee at a restaurant who started a group page on MySpace (remember them?) for other employees to sign on and complain about the store, the managers, the processes they had to follow, even the customers. As the group’s description concluded, “Let the shit talking begin.” And it did, all the way until management found out about it, convinced an employee to give them access to their account so they could read the page, and then terminated the two employees who ran the group.
By the time the case made it all the way to trial there were two main issues before the jury–whether the restaurant management had violated the New Jersey Wire Tapping & Electronic Surveillance Control Act (which has a rich legal history thanks to…um…legitimate business organizations) and if the restaurant had violated the employees’ right to privacy.
The verdict sheet shows the final results. The jury found that the restaurant had violated the wire tapping law by accessing the MySpace group without authorization. This is an interesting result by itself, since the summary judgment motion (p.2 if you want to look it up) says that an employee was asked for her password and she gave it–even though no threat was made she believed she would have been in trouble if she didn’t hand over the password (pages 7 and 8 have a longer discussion). It’s interesting to see the longer discussion where the employee doesn’t make the obvious statement–“If I didn’t give them the password I was going to be fired”–instead it’s a weaker statement along the lines of “I didn’t know what would happen but they asked and I didn’t want to lose my job.” That’s enough, at least in the rich wire tapping legal history of New Jersey, to not be considered authorization and let the issue go to jury (where they found it was a violation).
On the second question, invasion of privacy, the jury was first asked if they believed the MySpace group was “a place of solitude and seclusion which was designed to protect the Plaintiffs’ private affairs and concerns.” The jury said it was, so it was on to the second question.
Here, though, the jury makes a 180 degree change. When asked if the plaintiffs had a reasonable expectation of privacy in the MySpace group, the answer was no. That’s a shocking twist from answering the first question as a yes–how could there be a group of solitude and seclusion, specifically designed to protect privacy, but users of the group don’t have a reasonable expectation of privacy? Should users have expected the group was a fraud? Should they have expected management to make unauthorized intrusions into the space? Were we already so skeptical about MySpace in 2009?
Sadly, we’ll never know the thought process for the jury. The wire tapping violation was enough to award damages to the fired employees: $3,400 in back pay and $13,600 in punitive damages.
It’s safe to say there is a lot more discussion about our jobs on social media since 2006 so it would be interesting to see how the jury’s attitude changes over the years. Does our increased activity on social media give us an increased sense of entitled privacy? Or as we become more experienced with social media do we actually expect our content to be less private over time?