Viewing private Facebook posts may subject you to legal liability – but exceptions apply!

Do private Facebook wall posts fall within the protection of the Federal Stored Communications Act (“SCA”)?  The United States District Court of New Jersey ruled they do in Ehling v. Monmouth-Ocean Hospital Service Corp., Civ. No. 2:11-CV-03305 (WJM) (Aug. 20, 2013).  So what is the SCA and how could the Court’s ruling affect your HR decisions?  

Here is the case in a nutshell.  Plaintiff Deborah Ehling, a registered nurse and paramedic, frequently posted comments and photos to her Facebook wall – a wall that limited access to only her Facebook friends.  Plaintiff was not shy with her comments.  For example, after a shocking shooting in Washington D.C., Plaintiff posted the following:

“[a]n 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning killing an innocent guard (leaving children).  Other guards opened fire.  The 88 yr old was shot.  He survived.  I blame the DC paramedics.  I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards ….. go to target practice.”

Plaintiff’s employer, Monmouth-Ocean Hospital Service Corp. (“MONOC”), received a copy of the post from a co-worker and Facebook friend.  As many of you likely know – most employers learn about employee Facebook posts because their so-called “friends” turn them in. 

After receiving the post, MONOC suspended Plaintiff with pay stating her comments reflected a “deliberate disregard for patient safety.”  Plaintiff filed a complaint with the National Labor Relations Board (“NLRB”).  The NLRB found MONOC did not violate the National Labor Relations Act, and that no privacy violation occurred as the post was sent unsolicited to MONOC management. 

MONOC ultimately terminated Plaintiff for other disciplinary violations, unexcused absences, and her failure to return to work after numerous FMLA leaves of absences.  Ehling then filed suit in federal district court alleging, among other things, that MONOC violated the SCA, and the common-law claim of invasion of privacy for inappropriately accessing her Facebook post.

So, let’s step back a minute.  What does the SCA do?  The purpose of the Act is to protect information that a “communicator” meant to keep private.  The SCA applies to: (1) electronic communications; (2) that were transmitted via an electronic communication service; (3) that are in electronic storage; and (4) that are not public.  Given this, the Ehling Court ruled that Facebook posts configured to be private – not open for general public viewing – met all four criteria.  “The Court note[d] that when it comes to privacy protection, the critical inquiry is whether Facebook users took steps to limit access to the information on their Facebook walls.” 

Although Ehling chose to keep her Facebook wall private, and hence her posts were covered under the SCA, the Court determined the “authorized user exception” applied.  The authorized user exception applies where (1) access to the communication was “authorized,” (2) “by a user of that service,” (3) “with respect to communication … intended for that user.”  Each prong of this exception was met in theEhling case.  Access to Ehling’s Facebook posts was “authorized” as her co-worker voluntarily – without solicitation or coercion – provided copies to management.  The co-worker was also a “user” under the exception as he had a Facebook account, and Plaintiff had friended him.  Plaintiff intended her Facebook rants to be viewed by her friends – including all of her Facebook friends at work.  The Court, therefore, dismissed Ehling’s claims under the SCA.  Interestingly, Ehling’s common law claim for an invasion of privacy into her Facebook account also failed.  The Court, just as with the SCA claims, found that there was no intentional intrusion into her Facebook account.

So what might an employer learn from Ehling v. MONOC?  First, at least one court found that an employee’s private Facebook posts fell within the protection of the SCA, and that accessing them without authorization might open up the employer to liability.  Second, how management accesses, or receives copies of, the employee’s Facebook post matters.  If management solicits, or coerces, an employee to provide copies of, or access to, another’s Facebook posts, or asks the employee to login to Facebook to view the other employee’s account, the SCA exception might not apply – the access might not be “authorized.”  But if, as in Ehling, a co-worker voluntarily provides information to management without strings attached the access might fall within the “authorized user” exception.

This case should remind all Facebook users to think about who their Facebook “friends” are…would your “friend” turn you in to an employer for a thoughtless Facebook comment?  Food for thought.