Chances are your employees have sites on Facebook, MySpace, or some other online social networking site. It is not uncommon for these employees to post statements or photographs on those sites that are derogatory of their boss, their workplace, or their colleagues. Sometimes people post statements or explicit photographs that embarrass themselves, and by extension, you, as their employer. Is an employer entitled to terminate an employee for a Facebook posting? After all, they might say, it was done on my own time, and accessible only to my social networking “friends”.
As reported by Anthony Zaller, a recent case in California may support an employer’s right to take action based upon information contained in a social networking site. In Moreno v. Hartford Sentinel, Inc., a Court of Appeals in California dismissed an invasion of privacy lawsuit based upon a newspaper’s republication of statements contained in the plaintiff’s MySpace site. The statements were derogatory of the plaintiff’s hometown, and she claimed to have received death threats and was forced to move as a result of the paper’s republication.
The court reasoned that the plaintiff’s “affirmative act [to publish on MySpace] made her article available to any person with a computer and thus opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.” The fact that the plaintiff made her postings available only to a limited audience did not change the analysis.
Although the Moreno case did not involve and employer-employee relationship, the court’s reasoning supports the proposition that information on social networking sites is not private, even if the author intends to make the site available to a limited audience. While an employer should always use caution when relying upon such information in employment decisions, a decision like Moreno provides some confidence that such reliance does not constitute an invasion of the employee’s privacy.