Jottings By An Employer's Lawyer

Friday, December 15, 2006

Employers Pick Up Another Defense for Employee's Computer Antics

Although one might shudder on learning that a California court was getting first shot at the question of whether an employer was protected from responsibility for it's employees internet communications, this time it turned out ok. Delfino v. Agilent Technologies, Inc. (Cal. App. - 6th Dist. 12/14/06) [pdf] . In fact in reading the opinion you might even think you weren't in California.

The court was affirming a summary judgment that had been granted Agilent in a lawsuit for intentional and negligent infliction of emotional distress brought by two individuals, Delfino and Day, who were on the receiving end of threatening emails sent via an Agilent employee's company provided connection to the internet. Among its other defenses, Agilent raised the protection of §230 of the Communications Decency Act of 1996.

In order to qualify for protection, Agilent had to show:
  1. the defendant [is] a provider or user of an interactive computer service;
  2. the cause of action treat[s] the defendant as a publisher or speaker of information; and
  3. the information at issue [is] provided by another information content provider.

Noting that it was "aware of no case that has held that a corporate employer is a provider of interactive computer services under circumstances such as those presented here," the Court nevertheless did so.

While the use of the CDA as a defense is the most important aspect of the case, it is interesting reading and shows how far some people are willing to go in using the intnernet for their personal battles. Apparently the underlying dispute arose when Delfino was terminated from Varian Medical and Day resigned two months later in support, all of which was followed by a bitter lawsuit.

The Agilent employee whose conduct was in question here was alleged to have sent emails to Delfino and Day including the following:

‘It’s coming [expletive], and you won’t see it. I seriously hope you have health insurance because you’re going to get your ass stomped by me and some friends. The best part will be you won’t be able to prove it was me. I already have proof I was somewhere else. You can look forward to all your fingers getting broken, several kicks to the ribs and mouth, break some teeth, and a cracked head. Also, your car will be trashed and your computer destroyed. Maybe set your place on fire so you can be evicted. If your [expletive] is there, she’ll take a little ride to the parts of San Jose where they don’t speak [E]nglish . . . Die, [expletive]. You’ll wish you had.’

In his defense, the employee claimed he had been frustrated in part because of the more than 28,000 internet postings of Delfino and Day about the former employer or some of its employees. Those postings were the subject of prior litigation which included a decision by the California Supreme Court finding a judgment in excess of $750,000 against Delfino and Day for their internet postings was void. Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180.)

On second thought — it is pretty clear it is California.

A hat tip to Jon-Erik G. Storms at Storm's California Employment Law for alerting me to the case. His analyis is here.

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