Saturday, October 3, 2009

Employer Liability for Accessing Employee's MySpace Group, Part Deux

In yesterday's post on Pietrylo v. Hillstone Restaurant Group, I blogged about an employer that found itself in hot water for accessing an employee's "by invitation only" MySpace group (called the Spectator) by using another employee's login information.  The jury found the restaurant liable under the Stored Communications Act (also known as Title II of the Electronic Communications Privacy Act of 1986).  The plaintiffs in that case also pursued a common law invasion of privacy claim.  Although the plaintiffs lost on that count, there's an important jury finding worth pointing out.

On the invasion of privacy claim ("intrusion upon seclusion"), the jury instructions asked, "Was the Spectator a place of solitude and seclusion which was designed to protect the Plaintiffs' private affairs and concerns?"  To this, the jury responded, "yes."

The instructions went on to ask, "Did the Plaintiffs have a reasonable expectation of privacy in the Spectator?"  Here, the jury answered "no," which left the plaintiffs without a claim.  (The jury didn't go on to determine whether a reasonable person would find it highly offensive, the next element to prove the claim).

This seems a bit curious -- as the two answers appear to be mutually exclusive.  In other jurisdictions, an affirmative answer to the first question would necessarily mean the plaintiffs had a reasonable expectation of privacy in the "thing" intruded.  An invasion of privacy claim for intrusion upon seclusion in Iowa, for example, just has two elements:  (1) an intentional intrusion upon the solitude or seclusion of another, (2) which a reasonable person would find highly offensive. 

However this verdict form might be analyzed, one thing is clear:  a jury may well find that "by invitation only" MySpace groups --as well as other online content with certain privacy controls -- can be a "place of solitude and seclusion" for purposes of an invasion of privacy claim.

Here's the relevant portion of the jury form:

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