IANAL: I am not a lawyer and this is
not legal advice. If you want legal advice, consult an attorney,
not my web pages!
As an employer, I am always concerned about the potential liability I
might have for the misconduct of my employees.
Internet legal resources say that an employer bears responsibility
employee misconduct,
"Under a legal doctrine sometimes referred to as
"respondeat superior" (Latin for "Let the superior answer"), an employer
is legally responsible for the actions of its employees.
However, this rule only applies if the employee is
acting within the course and scope of employment. In other words, the
employer will generally be liable if the employee was doing his or her
job, carrying out company business, or otherwise acting on the
employer's behalf when the incident took place."
Employer responsibility for Internet Misconduct
This doctrine suggests that an employer who provides Internet access
to an employee is responsible for the bad acts by the employee,
especially if the bad acts are in any way related to their job:
"A law firm issues cell phones to all of its lawyers,
to allow them to call into the office and check in with clients when
they are on the road.
A lawyer, driving, hits a pedestrian because she is
completely engrossed in her telephone conversation with a senior partner
in the firm.
The law firm will probably have to pony up for the
pedestrian's injuries.
The
Business Torts Journal notes that if your employee defames or libels
someone in the course of doing their job, the employer is liable.
"Almost every state has held that an employer is not
liable for an employee’s misconduct committed outside the course and
scope of his employment.
However, about half of the states have carved out
exceptions to this general rule and have held an employer liable to a
third party for an employee’s nonwork-related act. . .
Some states have held an employer liable when its
employee’s conduct is of the kind the employee is hired to perform and
when the employee’s conduct occurs substantially within authorized time
and space and is motivated at least in part to serve the employer."
Examples might include a computer programmer who harasses, libels or
defames another computer programmer on an Internet forum or message
board.
Scope of Employment and employer responsibility
If an employer gives an employee a computer and access to the
Internet, and they no not place restrictions of the types of activities
an employee may conduct, they are facilitating their bad acts, but only
if the misconduct is in the course of doing their job.
"If your employee caused the injury while acting
within the scope of employment, you will have to answer to the victim."
In the world of Information systems employees, the "respondeat
superior" doctrine might apply when a computer system administrator
publishes a libel about the vendor software package or defames
colleagues who works in their field of expertise. The definition of
conduct within the scope of employment is straightforward:
(1) it is of a kind and nature that the employee is
employed to perform;
(2) it occurs substantially within the
authorized time and space limits of the employment;
(3) it is
actuated, at least in part, by a purpose to serve the employer; and
(4) if force is intentionally used by the employee against another,
the use of force is not unexpected by the employer.
Employers responsibility for Internet misconduct
This article on employees Internet Misconduct says that employee web
surfing can wipe out your business and that employers may be exposed to
liability for torts, breach of contract, copyright violations, and for
crimes arising out of an employee’s misuse of a workplace computer.
There are also special cases for an employees
Internet criminal acts such as harassment and tortuous interference
with business relationships.
Internet Libel at work: Misuse of company equipment
The articles also suggests that a employer may be held accountable
when an employee transmits or publishes false or defamatory material:
"In Gavrilovic v. Worldwide Language Resources, Inc.,
the Court held that a coworker’s e-mail statement that an employee of a
military contractor was the military base “F*ck toy” was false and
defamatory, as required for the employee to recover from the contractor
for defamation."
This article says that an employee who posts harassing or defamatory
statements while at-work will expose the employer to liability for their
bad acts (see Blakey v. Continental Airlines (N. J. Sup. Ct., June 1,
2000) :
"Employers have been sued for copyright infringement
when an employee downloaded copyrighted material from the Internet, for
racial discrimination when employees circulated offensive emails, and
for sexual harassment when employees posted harassing comments on an
electronic bulletin board."
The point is that you, the employer, MUST monitor the activities of
your employees. If you do not monitor an employee, and they
repeatedly harass or defame someone, the employer may be responsible for
the damages:
"The New Jersey Supreme court reversed and remanded,
holding that although `employers do not have a duty to monitor their
employees' private communications, employers do have a duty to take
effective measures to stop employee harassment when the employer knows
or has reason to know that such harassment is part of a pattern of
harassment that is taking place in the workplace and in settings that
are related to the workplace."
However,
this 2009 Wisconsin case limits the liability of an employer to only
be responsible when "foreseeable" employee misconduct exists (e.g. a
history of reprimands).
Are you an ISP?
Case law suggests that your companies Internet connection might
quality you as the "provider of an interactive computer service",
in which case you might be immune from the bad acts or an employee, per
the DMCA section 230.
In the 2006 case: DELFINO v. AGILENT TECHNOLOGIES, INC., (US Supreme
Court certiorari denied in 2007) the judge noted:
“An employer may be liable for an employee’s willful
and malicious actions
under principles of ratification. An employee’s
actions may be ratified after the
fact by the employer’s voluntary
election to adopt the employee’s conduct by, in
essence, treating the
conduct as its own. . . "
For more current case law on who is a provider of an interactive
computer service, see
Zango v. Kaspersky Lab, Inc., No. 07-35800 (9th Cir. June 25, 2009),
where the court restricts section 230 immunity ONLY to content
providers, not employers who give their employees Internet access:
Zango relies on legislative history to
show that Congress intended to grant immunity only to content providers.
|
In particular, Zango points to the House Conference Report’s
statement that “[o]ne of the specific purposes of [§ 230] is to overrule
Stratton-Oakmont v. Prodigy
and any other similar decisions which have treated [Internet service]
providers and users as publishers or speakers of content that is not
their own because they have restricted access to objectionable
material.”
IANAL: I am not a lawyer and this is
not legal advice. If you want legal advice, consult an attorney,
not my web pages!
