MySpace or My Liability?

By Ronald G. Guerra

Most companies today use computers to communicate, manage, and store information. While computer technology develops rapidly, the corresponding law develops very slowly. This article discusses social networking Website use in the workplace.

A social network site is an online location that allows users to create and update a personal profile, to communicate with friends, or to post information. Sometimes the information is highly personal and may include statements or comments that can constitute threats, defamation, or discrimination.

Websites have grown into a phenomenon that engages tens of millions of Internet users. MySpace, Facebook, and LiveJournal, for example, have more than 251 million users.

Many companies limit the use of their computer systems to company business only. Despite such policies, employees routinely use their employers' computer systems to access the Internet and send email messages.

Consider the following scenario. An employee maintains an account on a social networking site and posts derogatory information that reflects badly on the employer. Considering that the employee accessed and posted the derogatory information by using the employer's computer system, may the employer discipline the employee?

Yes, if the company has a written policy in effect clearly stating that:

• Employees have no expectation of privacy in the use of the company computer system, even when using such system on personal time.
• Any message created on or sent through the company's computer network is subject to monitoring.
• The posting of defamatory or other derogatory information subjects an employee to discipline.

The employer then has a sound legal basis for disciplining the employee and should follow its own disciplinary process. Finally, before terminating an employee, an employer should consult legal counsel to ensure compliance with federal and state law.

If the employee did not use the employer's computer system to post the comments, then the answer is not so clear. Employees have an expectation of privacy in their communications, an expectation that is supported by state and federal laws. Was the information obtained by the employer in violation of state or federal law? An employer that relies on improperly or unlawfully obtained information to discipline an employee may be liable. Again, sound legal counsel is a must.

Of particular concern to an employer is its liability to third parties as the result of an employee's use of its computer systems to harass, discriminate against, or threaten someone. Such liability may arise if an employee uses the company computer system to access his or her social networking site and then uses it to commit unlawful acts. The law is unsettled in this area and will continue to change as technology changes.

Employer beware! Make sure your employment policies clearly state the policy on the use of company-owned communication systems. Include a statement that an employee's communication is subject to monitoring, capture, and review by the company, even communication engaged in on personal time. Reissue the policy annually to employees; get a signed employee acknowledgment and keep it. Consider the creation of a pop-up notice each time the employee uses the company computer system to send email or to access Internet Websites and finally have your legal counsel review your policy statements.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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