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Employee’s Non-Public Facebook Postings Protected by Law


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Pirtle

By Mary Leigh Pirtle

Background
A registered nurse and paramedic at a hospital received a temporary suspension from work as the result of a post she made on her own “Facebook wall.” The nurse’s Facebook wall post indicated paramedics should have allowed a man involved in a museum shooting to die, rather than saving him. Unbeknownst to the nurse, the hospital was made aware of the post, and the nurse was temporarily suspended because management was concerned her comment reflected a “deliberate disregard for patient safety.” The nurse filed suit against her employer alleging it improperly accessed her Facebook wall post about the museum shooting, in violation of the SCA.

Privacy Settings
Facebook users are provided with the option of tailoring who can access information posted on their account. For instance, each user may restrict the privacy settings so only certain “Facebook friends” or groups can see wall posts. In this instance, the nurse’s “Facebook friends” included several co-workers, but none of the hospital’s management. Additionally, she had adjusted her privacy settings so only her “Facebook friends” could view the messages she posted onto her wall.   Although no one from the hospital’s management could view the nurse’s post on Facebook, one of her co-workers who was her Facebook friend took a screen-shot of her posting and provided a copy of it to the hospital management. The nurse alleged this co-worker was coerced into accessing her Facebook page in the supervisor’s presence and the supervisor then viewed and copied the nurse’s Facebook posting. However, it was later proved the co-worker had acted on his own in providing a copy of the post to management, and was not coerced or asked to provide the posting in any way.


SCA Protected Communications
The SCA provides protection to private electronic communications transmitted via an electronic communication service and in electronic storage, and makes anyone who intentionally accesses such information without authorization liable for the resulting damages. The court determined the Facebook postings were protected communications under the SCA. Obviously, Facebook wall posts are electronic communications transmitted via an electronic communications service. Additionally, all Facebook postings are stored indefinitely on a Facebook server for backup purposes. However, the real analysis concerned whether these communications were “private.” The court stated “Facebook wall posts that are configured to be private are, by definition, not accessible to the general public,” explaining the purpose of the SCA is to protect private information. The court determined information is “private,” and thus protected, as long as the communicator actively restricts the public from accessing the information. In this case, because the nurse took the steps necessary to restrict her wall posts to only be viewable by her “Facebook friends,” rather than the default “public” setting, the court determined the post was protected by the SCA.


Authorized User Exception
Unfortunately for the nurse, the court’s analysis did not end there. The SCA does not apply with respect to authorized conduct. This “authorized user exception” applies when access to the communication was authorized by a user of the service with respect to communication intended for the user. However, access is not authorized if the purported authorization was provided under pressure or through coercion. While the nurse alleged her co-worker was coerced into providing her wall post to management, it was determined during the case the information was completely unsolicited. The co-worker was designated as a “Facebook friend,” thus, her posting was intended for his viewing. What he chose to do with the post while viewing it, as long as he was not coerced, was of no consequence in this situation.   He was an authorized user of the Facebook service and her post was intended for him as a designated “Facebook friend.” Therefore, although the posting was protected by the SCA, the court determined the authorized user exception applied and the employer was not liable.

 

Takeaway
Although the company prevailed in this case, employers should be aware of the SCA and other privacy issues when attempting to access or manage an employee’s social media use.


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