Employee Alleging Employer Accessed Quasi-Public Facebook Posts States a Valid Claim for Invasion of Privacy
By Charlie Stiernberg – Edited by Heather Whitney
Ehling v. Monmouth-Ocean Hosp. Serv. Corp., No. 2:11-cv-03305 (WJM) (D.N.J. May 30, 2012)
Slip Opinion (hosted by Justia.com)
The United States District Court for the District of New Jersey granted defendant Monmouth-Ocean Hospital Service Corp.’s (“MONOC”) Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff Deborah Ehling’s New Jersey Wiretapping and Electronic Surveillance Control Act (“NJ Wiretap Act”) claim, but denied MONOC’s motion to dismiss Ehling’s common law invasion of privacy claim. Ehling, a MONOC employee, alleged that a supervisor inappropriately accessed restricted posts on her Facebook page without her consent.
The court held that Ehling failed to state a claim under the NJ Wiretap Act, because she did not allege that her Facebook posting was viewed by her employer “in the course of transmission.” Ehling, No. 2:11-cv-03305 (WJM) at 4. The court held that the NJ Wiretap Act does not apply to a received communication that is placed in “post-transmission storage” before it is “accessed by another without authorization.” Id. at 4-5. On the other hand, the court held that Ehling had stated a plausible claim for common law invasion of privacy, in part because she “may have had a reasonable expectation that her Facebook posting would remain private,” especially because she took steps to protect her Facebook page from public viewing. Id. at 6.
The Delaware Employment Law Blog provides an overview of the case, and states that the key take-away for employers is “Don’t look for trouble or you just may find it.” The Eric Goldman Technology & Marketing Law Blog notes that the number of Facebook friends with whom Ehling shared her post may end up determining whether the post should be accorded any privacy protection.