Back to Publications Index
Splatter the Chatter - Pt. I
How to Control Employee Gossip in Internet "Chat Rooms"
by Peter Kelman, Esquire
This article appeared in substantially the same form in Mass HighTech, October 11, 1999.
Freedom of expression and lack of accountability are further enhanced by an author's use of a pseudonym when posting messages. ISPs permit contributors to post messages using fanciful names. Pseudonyms are usually purposefully chosen and designed to achieve some effect by the author (e.g. "companyemployee"), which casts the message in a certain light. Thus the Internet provides a medium through which an individual, emboldened by anonymity, can post a message, accountable to no one, to be read by an audience of hundreds of millions of people forever.
Raytheon and Xircom are two high-profile, publicly traded companies that have been the target of negative comments posted on web bulletin boards by individuals purporting to be company employees. Both companies filed lawsuits to compel the ISP to disclose the authors' true identities. For a company damaged by such statements, this procedure does little to restore image. The battle may be won, but the war is lost. Xircom, in fact, created a web page on which its general counsel defended the actions of the company.
To implement these rules, Yahoo! provides a service whereby a reader can identify an offending message and request that Yahoo! remove it, citing the reason for its removal.
While there are a number of causes that can be cited for removal of a message, the easiest to prove is that the message violates your company's employee nondisclosure agreement. A typical employee nondisclosure agreement recites that the employee will not divulge confidential or proprietary information of the company to third parties. The best time to ask employees to agree to such a nondisclosure agreement is when they are hired. However, Massachusetts courts have held that continued employment of at-will employees may supply sufficient consideration to support entering into such an agreement after the employee has been hired. Whenever your employees sign such an agreement, use that opportunity to discuss with them the business reasons for monitoring statements in the public domain. Surely the best way to control the damage from such statements is to prevent publication in the first place.
If your company is unsuccessful in its efforts to convince an ISP to remove the message, you may resort to a civil lawsuit to compel the ISP to disclose the author's identity. Such lawsuits are called "John Doe" cases, since the true name of the defendant is not known. As the plaintiff in such a suit, you will have the burden of convincing the court that the information disclosed in the public message is sufficiently damaging to the company that it merits the court to issue a subpoena against the ISP to reveal the author's identity. However, as Raytheon and Xircom have discovered, the publicity generated by such a lawsuit should be considered before a company embarks on this path.
1999, Peter Kelman. All rights reserved.