By David W. Garland and Kristina R. Haymes
Internet Law & Strategy
n recent years, millions of employees have joined the world of Web 2.0, which includes social networking sites such as Facebook and LinkedIn, blogs, wikis, podcasts, video sharing sites and RSS feeds. Today, technology allows virtually anyone to easily post a message, picture, audio and/or video to his or her networking page, blog or other Web site. In this constantly changing new world, where individuals have the ability to disseminate information about their employers to a potentially worldwide Internet audience, employers need to evaluate their existing technology policies and, where necessary, implement new policies and strategies.
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Of course, content matters, and before any action is taken, the content must be evaluated. Disclosing a company's trade secrets on the Internet is far different from exposing allegedly financial wrongdoing by management in the selling of mortgage-backed securities. The former would constitute a breach of an employee's duty of loyalty, misappropriation of trade secrets and potentially a breach of any contractual confidentiality or nondisclosure agreements, all justifiable grounds for the employee's termination.
The latter, if the employee also reported the wrongdoing, could be protected whistle blowing activity. Thus, as long as an employee is not engaged in a protected activity (e.g., whistle blowing or union activity), an employer is free to terminate him or her for inappropriate conduct discovered through the Internet, particularly where the employee has violated a company policy. At the same time, companies should ensure equal enforcement of their policies to avoid discrimination claims.
On the other side of the fence, many employees erroneously assume that the First Amendment protects their blogging and social networking Internet activity. While the First Amendment only covers state action and thus only covers public employees, it does provide some protection for anonymous posters. In McIntyre v. Ohio Elections Commission, 514 U.S. 334, 342 (1995), the United States Supreme Court recognized a qualified First Amendment right to anonymous speech: "[e]xpressing oneself anonymously is grounded within our constitution and historical tradition ... ." Yet, "[p]rotection of anonymous speech is not absolute."
If an employer discovers that someone, who it suspects is an employee, is leaking company trade secrets, confidential information or otherwise engaging in anonymous Internet speech that is illegal or damages the company's brand or reputation, then the company has certain remedial options. For example, if an employee is posting information from a work computer, then the employer can use its technology to discover the source of information. When the employee posts information anonymously from outside of work, however, the employer's ability to discover the poster will depend upon its ability to prove a prima facie case of a legal claim and the necessity for the disclosure of the anonymous defendant's identity. Without a viable legal claim, employers will not be able to compel Internet service providers to reveal a poster's anonymous identity.
