Mar
14
First amendment in the digital age
Posted by Dirk Avery at 7:42 am under Internet, Litigation, Technology.
Can an employee mouth off to his friends about something unrelated to work? Of course? What if his “friends” happen to be the worldwide readers of his blog? A couple of days ago, outed Patent Troll Tracker Richard Frenkel was sued for defamation based on comments he made on his blog. His employer, Cisco, was also sued because his manager knew about the blog. Where is this all heading? Are employers now going to be responsible for everything their employees say online? Free speech won’t be worth much if that’s the case, except for the independently wealthy. Forbes’s Asher Hawkins has more on Frenkel.
While employer-employee relationships have probably always curtailed the employee’s free speech right to some extent, the digital world presents a whole new problem. Even though you may only have a small readership, when litigation arises, some clever associate will likely be able to find any publicly accessible comments you’ve made. This, in turn, will make employers increasing wary about what their employees say and whether it can be imputed to them. The problem becomes even more difficult when blog posts are made at work using equipment and an Internet connection provided by the employer.
Hopefully basic agency principles, of which the Cisco plaintiffs seem unaware, will save the day. Liability for a person’s action should not be imposed on an employer unless the person is 1) an employee (determined primarily by tax status, benefits), and 2) the action is within the scope of employment. To be within the scope of employment, the action should 1) be the kind of work the employee was hired to perform, 2) occur substantially within the time and space limits of the employment, and 3) be motivated, at least in part, by a motive to serve the employer. Before employers get draconian with their policies, they should consider that the agency test would already shield them from liability in many cases.
For employers, retaining the vibrancy, candor and richness of online speech is worth not being excessively cautious respecting employees online communications.