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Quote of the Day - Threats don't work with the person who's got nothing to lose. - Maduro Ash
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Communications Decency Act Comes To The Rescue Of Employers

As an employer, are you liable for your employee's threatening emails to others?  The short answer is no, but it took the Sixth Appellate District some 34 pages to say it.  And with good reason - there's an interesting story there. 

Michelangelo Delfino and Mary Day got into a dispute with their former employer, Varian Medical Systems, and allegedly posted some 28,000 comments on the Internet about Varian, which the company believed amounted to defamation and harassment.  One of Varian's supporters, Cameron Moore, also got into the mud-slinging with Delfino and Day.  Varian had earlier obtained a judgment of some $775,000 against Delfino and Day, but that verdict was overturned by the California Supreme Court under a SLAPP theory.

Delfino and Day apparently got involved with Moore along the same lines as their campaign against Varian, and Moore's comments in return physically threatened Delfino and Day with bodily harm and death.  The FBI got involved, trying to put an end to an ugly saga between the three players.

Delfino and Day, however, wanted blood, and sued Moore and his employer, Agilent Technologies.  They did pretty well, and netted an almost $600,000 verdict against Moore, but not Agilent.

Why not the company, too?  We know at least one probable reason why Delfino and Day sued Agilent:  the company's pockets are deeper than Moore's, and they'd be more likely to be able to collect such a judgment.

But Agilent wasn't held liable.  The Court determined that Aglient was in the business of providing internet services to its employees, and under the Communications Decency Act of 1996, it was immune from suit when its employees had acted badly.  It likely didn't hurt, either, that Aglient had a policy ("Standards of Business Conduct") against such behavior: 

"[C]ertain messages and materials simply must not be sent or accessed on Agilent equipment or through Agilent systems; these include . . . threatening, sexually explicit or harassing materials. You must not use Agilent resources to create, transmit, store or display messages, images or materials in any of these categories. Misuse of Agilent assets is misconduct and may result in termination of your employment."

Plus, the court noted a number of other factors in Agilent's favor:  (a) the FBI assured Agilent that Moore was not a threat, that they didn't plan an arrest, and that Agilent need not be concerned about him; (b) Agilent's early internal investigation did not disclose that Moore had used its computer system to send any threatening e-mails or postings; (c) when Agilent reprimanded Moore, he did not admit to using its computer system to make any threatening Internet postings and denied using Agilent's system to send any e-mail threats; (d) no Agilent employee knew about Moore's cyberthreats; (e) Agilent's second internal investigation conducted after Moore's arrest did not disclose that Moore had made any cyberthreats; and (f) Agilent did not learn the substance of Moore's threatening e-mails and postings until it received the arrest affidavit.

In other words, Agilent acted reasonably.  It was not only the circumstances and the internal company policy that excused Agilent from liability, but also the Communications Decency Act

2/16/07 Update:  Mary Day forwarded to MIPTC her Reply to Answer to Petition for Review, and you can read it here.  Other briefs may be available here.  If anyone has a source for additional briefs, let me know and I will post them.

So, if you're an employer, get that Internet use policy drafted, conduct prompt and thorough investigations when allegations of wrongdoing are leveled, reprimand and discipline employees where appropriate and try to put an end to the bad behavior.  Those steps, along with the law, give a solid shield against liability, according to the Courts. 

It might help if people would behave themselves, too, but that's a whole other issue for a different day.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, December 16, 2006 at 11:52 Comments Closed (2) |
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