Internet Law Info Blog

Can an employer legally check an employee’s password-protected social networking site?

In a recent decision, a Federal District Court for the District of  New Jersey upheld a jury’s verdict that a chain restaurant violated the Federal Stored Communications Act and a similar New Jersey law by knowingly and intentionally accessing its employees’ private chat group on MySpace.com. 

The managers of Houston’s Restaurant learned of the chat group from employee Karen St. Jean and gained access to it using her password.  As a result, several employees lost their jobs based upon comments made about Houston’s on the site.  

Those employees sued Houston’s and a jury trial was held.  The jury decided the managers’ access to the site was unauthorized after hearing testimony from St. Jean that she felt pressured to provide her password to her managers.  In addition, the jury decided that the managers knew St. Jean felt pressured to provide her password.  As a result, the jury rejected Houston’s argument that its managers genuinely believed they had authority to access the chat group.  The fact that the managers accessed the site on five separate occasions was sufficient to establish that they knowingly and intentionally accessed the site without authorization.  In fact, the jury determined that the managers’ actions were so malicious as to justify an award of punitive damages in addition to compensatory damages.  Pietrylo v. Hillstone Restaurant Group, No. 06-5754, 2009 WL 3128420 (D.N.J. 2009).

This case illustrates the importance of creating a clear policy regarding an employee’s use of social networking sites, especially when comments about that person’s employer may be contained on the site.

Do bloggers have to disclose their sources?

The New Jersey Supreme Court has accepted a case in which it will decide whether a person posting comments on the Internet has to disclose the source of the posted information. In Too Much Media, LLC v. Hale, 413 N.J. Super. 135, (App. Div. 2010), certif. granted, Too Much Media, LLC v. Hale, 203 N.J. 433 (2010), a woman sought protection under the NJ Shield Law, N.J.S.A. 2A:84A-2, which protects journalist from disclosing their confidential sources. The woman claims that, like a paid journalist, she was investigating a newsworthy matter and reporting her findings via a posting on an Internet bulletin board. The Appellate Division found that she was not investigating and reporting news and therefore, was not protected by the Shield Law. It stated in part, Simply put, new media should not be confused with news media. There is, of necessity, a distinction between, on the one hand, personal diaries, opinions, impressions and expressive writing and, on the other hand, news reporting. The transmission or dissemination of a “message” through the new medium of the Internet, or the display of one's content or comment thereon, does not necessarily entitle the author or writer to the same protection as a “newsperson.” Although any attempt at defining “news” would ultimately prove illusory, some delimiting standards must pertain lest anyone with a webpage or who posts materials on the Internet would qualify. Too Much Media, LLC v. Hale, 413 N.J. Super. at 154-5 (App. Div. 2010) This matter is now being reviewed by the NJ Supreme Court, which should issue its ruling sometime this term. Comments/Questions: gdn@gdnlaw.com © 2011 Nissenbaum Law Group, LLC Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com

Internet Advertisement on a Passive Website is Not Generally a Basis for Personal Jurisdiction in a Lawsuit

On August 16, 2010, the Federal District Court of the District of New Jersey upheld the prevailing view of personal jurisdiction as it relates to internet advertisements.  The Court in Morilla v. Laser Spine Institute, LLC, 2010 WL 3258312 (D.N.J.) stated that “[a] website that has only information and a generic contact information input form falls at the passive end of the Zippo scale.  Id. at 5.  The Court held defendant’s website to be passive and declined to exercise jurisdiction over defendant.  In the analysis of the operation of the defendant’s website, The Court stated:

 

In the past fifteen years, the increasing popularity of the internet has led courts to examine a defendant's internet activity as a potential basis for jurisdiction, but the Supreme Court has not yet spoken on this subject.   Zippo Manufacturing Company v. Zippo Dot Com, 952 F.Supp. 1119 (W.D.Pa.1997), a seminal case endorsed by the Third Circuit, considered whether a defendant's operation of a website could satisfy a federal court's exercise of personal jurisdiction over that defendant.  The Zippo court created a “sliding scale”, whereby the quality of contacts between a web host and a forum is evaluated by examining the website's nature and functions.  At one end of the scale are those web hosts who actively solicit business over the internet by using their websites to enter contracts or exchange data files.  If they engage in such activity knowing that their would-be customers are in another forum, jurisdiction over the web hosts in that forum is proper.  On the other end of the scale are passive hosts with purely informational websites that allow no interaction through the site-these websites do not themselves create sufficient contacts between the web host and other forums to justify an extra-territorial court's exercise of jurisdiction.  In the middle are websites that allow the visitor to ex-change information with the host, but do not affirmatively seek business from other states. For such sites, jurisdiction must be determined on a case-by-case basis by looking at just how “interactive” and commercial in nature the exchange of information through the website is.

 

When a website is passive or falls in the middle of the Zippo sliding scale, plaintiffs may have to prove “something more” to justify the exercise of personal jurisdiction-that is, plaintiffs must show that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state.  The “something more” can include evidence of non-internet contacts, such as ongoing communications with customers in the state, business trips to the state, advertisements in local publications, and business records of sales in the state.

Id. at 5.

 

The Court granted defendant’s motion to dismiss plaintiffs’ complaint because the plaintiffs failed to allege sufficient facts to show that defendant’s website was interactive.  Thus, the Court refused to exercise personal jurisdiction over defendant.  

 

Comments/Questions: ljm@gdnlaw.com

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