Robert Smithson's Legal Ease - Employees can't hide on the internet

EMPLOYEES CAN’T HIDE ON THE INTERNET

It seems, from my perspective, to have become fashionable for employees to publish critical comments about their employer (or former employer) on the internet. In many instances, these publications are accomplished using a pseudonym.

The nature of the comments can cross the boundary into being legally actionable for, as an example, defamation. What the publishers of these comments don’t seem to understand is that using a pseudonym when violating the rights of others may not protect them from legal liability.

As internet networking sites became more prevalent as a forum of social interaction, it was perhaps inevitable that the commentary they contain would stray over into workplace issues. After all, if the internet is now just another venue for “chat”, then why wouldn’t people want to discuss what they like (and more often) dislike about their workplace?

But communicating on the internet is fundamentally different than catching up with someone on the telephone or during your coffee break.

Posting comments on an internet site is, at its essence, no different than publishing the same comments in a newspaper (in fact, it’s likely far worse because the range of possible readers is unlimited). The words of the person doing the posting are preserved in print, if only electronically.

They can (and will) be copied and forwarded and circulated verbatim. The really critical point is that an internet “conversation” is in no way private.

It has the potential (and likelihood) of being accessed by many, many internet users and of being duplicated and forwarded to unlimited potential readers. It’s easy to see that making derogatory comments about one’s boss on the internet can cause exponentially more hurt and embarrassment than making the same comment in a private conversation.

Many people who publish damaging comments about the employer or a specific co-worker do so under the guise of a pseudonym. Presumably, these people believe that if their identity is hidden then they won’t be held responsible for potentially damaging commentary.

Court cases, however, are suggesting the opposite. In one recent Ontario Superior Court of Justice decision, the Court ordered the operators of an internet site to produce information identifying several “John Doe” defendants accused of libel.

Warman sued the internet site operators, Constance Wilkins-Fournier and Mark Fournier, as well as eight “John Does” over alleged defamatory on-line comments. In the course of pre-trial discovery processes Warman sought disclosure of information which would lead to the identification of the John Does.

Fournier and Wilkins-Fournier resisted disclosure, arguing that people using on-line message boards do so with the expectation of anonymity. They claimed that people using these sites make statements or provide information on message boards that they would not normally talk about in “real life”.

Warman, on the other hand, argued that the Ontario civil procedure rules compel defendants to hand over the names and addresses of the person who might reasonably be expected to have knowledge of the matters in issue in the action.

The Court was called upon to rule on the disclosure question. It observed that the most recent judicial pronouncements indicate there is no reasonable expectation of privacy for information connected with one’s IP address.

The Court stated that the arguments in favour of disclosure outweighed those by which the defendants sought to protect the identity of the John Does. That being the case, the defendants’ paramount obligation was to follow the Ontario civil procedure disclosure rules and make disclosure.

The lesson to be learned from decisions such as this is that if you insist on publishing statements on the internet, you should expect that your identity will have to be disclosed at some point. Perhaps the better lesson is that if you wouldn’t have made the same statements verbally in “real life”, you shouldn’t publish them on an on-line message board.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log onto www.pushormitchell.com. Past “Legal Ease” columns, may be viewed at http://www.pushormitchell.com/law-library/publication/legal-ease. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.