By: Kyle Mitchell
Blogging is among the most pervasive forms of communication on the Internet. Despite a recent decrease in blogging activity among teens and young adults,[1] as of 2009, about 10% of American adults have created or used a blog and about 28% have read someone else’s blog.[2] As people increasingly assimilate blogging and other forms of social media into their daily means of communication, they may feel more comfortable exposing their personal feelings about their employer or job and expect a level of privacy in their off-work blogging, [3] particularly if the person restricts access to the blog to select users. Employers, in turn, expect employees to curtail distracting, negative and disloyal commentary over the Internet as if they were talking over the “water cooler” at work.[4] Despite numerous anecdotes of employers discharging employees for negative off-work blogging or engaging in other social behavior outside of work, federal, state, and even common law does afford employees some protections against negative employment actions, and employers have responded by implementing measures to comply with these laws.
A major hurdle for employees claiming invasion of privacy from employers taking action against them for blogging is that most blogs are open to anyone with Internet access and are thus not “private.”[5] If, however, a blogger makes an effort to restrict access to the blog to certain users, an employer who accesses the blog without the employee’s permission or the permission of anyone granted access to the blog may be held liable under federal and state law.[6] For example, in Konop v. Hawaiian Airlines, Inc.,[7] the Ninth Circuit found that a manager at the airline violated the Stored Communications Act by signing onto an employee’s restricted website reserved for colleagues to vent about working for the airline.[8] Though the statute exempted employers from liability if the employer received authorization from a user of the site and the manager received the sign-in information consensually from employees authorized to use the site, the court held that “user” should be interpreted as someone who actually uses the site.[9] The employees from whom the manager received consent to access the website, however, had never actually used the site and were not considered “users” under the SCA exception.[10] States, such as New York[11] and Connecticut,[12] can also provide more protections to off-work employee activity that does not conflict with the business interests of the employer.[13]
Aware of the potential for liability under federal and state law for breaching employees’ privacy by regulating off-work personal blogging, employers have taken steps to mitigate their liability while exercising control over employees’ blog content. Some employers have the benefit of statutory language to argue employees’ off-work behavior is against the business interest. For example, New York’s relevant employment statute explicitly excludes from protection any employee conduct that “creates a material conflict of interest to the employer’s trade secrets, proprietary information or other proprietary or business interest.”[14] Applying this principle to employee blogging, employers could argue that publically complaining about work, even over a restricted access blog, could conflict with the employer’s business interest.[15] Additionally, to prevent litigation, employers have begun to draft and implement “internet postings policies” as part of the employment agreement that outline the restrictions employers demand from employees in using blogs or other social media sites.[16] Thus, the course of “blog wars” between employers and employees ebbs and flows between federal and state protections of employee privacy rights and employers’ proactive and reactive steps to maintain control over the content of employee blogs.
[1] See Blogs Wane as the Young Drift to Sites Like Twitter, Pew Research Center’s Internet & American Life Project, Pew Internet (Feb. 20, 2011), http://www.pewinternet.org/Media-Mentions/2011/Blogs-Wane-as-the-Young-Drift-to-Sites-Like-Twitter.aspx.
[2] Online Activities, 2000-2009, Trend Data, Pew Research Center’s Internet & American Life Project, Pew Internet, http://www.pewinternet.org/Static-Pages/Trend-Data/Online-Activities-20002009.aspx (last visited Apr. 22, 2011).
[3] Robert Sprague, Fired for Blogging: Are There Legal Protections for Employees Who Blog?, 9 U. Pa. J. Lab. & Emp. L. 355, 356-57 (2007).
[4] Id. at 358-59.
[5] Id. at 363.
[6] Id.
[7] 302 F.3d 868 (9th Cir. 2002).
[8] Id. at 879-80.
[9] Id. at 880.
[10] Id.
[11] See N.Y. Lab. Law § 201(d)(1)(a), (d)(2)(b)-(c) (McKinney 2011); see also Sprague, supra note 3, at 381-82 (discussing that New York has adopted legislation prohibiting employers from discriminating against employees because of legal political activity, legal use of consumable products, and legal recreational activities that are off-site, outside of work hours, and without using the employer’s equipment or property).
[12] See Gombossy v. Hartford Courant Co., No. X07CV095033169S, 2010 Conn. Super. LEXIS 1705, at *1-2 n.1 (Conn. Super. Ct. June 28, 2010) (citing Conn. Gen. Stat. § 31-51q (“Any employer . . . who subjects any employee to discipline or discharge on account of the exercise . . . of rights guaranteed by the first amendment to the United States Constitution or section 3, 4, or 14 of the article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employer and employee, shall be liable . . . .”)).
[13] The Four Recognized Claims for Invasion of Privacy and Employer Conduct Raising Privacy Concerns, 10-272 Labor and Employment Law § 272.02, LexisNexis, http://www.lexisnexis.com/lawschool/research/Default.aspx?e=&pp=002&com=2&com=2&ORIGINATION_CODE=00086&searchtype=get&search=10-272+Labor%20and%20Employment%20Law%20@%20272.02&autosubmit=yes&topframe=on&powernav=on&tocdisplay=off&cookie=yes
[14] See N.Y. Lab. Law § 201(d)(3)(a) (McKinney 2011).
[15] See Sprague, supra note 3, at 382.
[16] See Cheryl M. Stanton, Shawe Rosenthal, LLP, Common Provisions of Employment Handbooks, Section 8(d), 10-258 Labor and Employment Law, LexisNexis, http://www.lexisnexis.com/lawschool/research/Default.aspx?e=&pp=002&com=2&ORIGINATION_CODE=00086&searchtype=get&search=10-258+Labor%20and%20Employment%20Law%20@%20258.07&autosubmit=yes&com=2&topframe=on&powernav=on&tocdisplay=off&cookie=yes
The L•E•Jer 
This is a very interesting issue! The legal system is going to have a lot of catching up to do when it comes to the digital age!