After Employer Accesses Employee’s Facebook Posts, New Jersey Court Allows Invasion of Privacy Claim to Proceed

320px-Keansburg,_New_Jersey.jpgA federal judge in New Jersey denied a defendant’s motion to dismiss a former employee’s invasion of privacy claim. In Ehling v. Monmouth-Ocean Hospital Service Corp., an employee sued her employer after a supervisor allegedly accessed her Facebook account without her knowledge or permission and publicized information she considered private. The court dismissed her claim for violation of New Jersey’s wiretapping statute, but denied a motion to dismiss her invasion of privacy claim. The case could set an important precedent for an employee’s expectation of privacy in certain social media activities.

The plaintiff, Deborah Ehling, worked for Monmouth-Ocean Hospital Service Corporation (MONOC) as a registered nurse and a paramedic from 2004 to 2011. In 2008, she began a term as union president. During the time period relevant to her claim, roughly 2008 to 2009, Ehling had an account on the social networking website Facebook, which she says was only accessible to her approved “friends.” Although some coworkers were her Facebook friends, none of MONOC’s management was.

Ehling alleges that one or more supervisors compelled a fellow MONOC employee, who had a “friend” connection to Ehling on Facebook, to access Ehling’s Facebook page in the supervisor’s presence. The supervisor allegedly copied some of Ehling’s Facebook posts, including one in which she expressed a sentiment that paramedics responding to the scene of the 2009 Holocaust Museum shooting in Washington, DC should not have attempted to save the gunman’s life. MONOC allegedly contacted the New Jersey Board of Nursing and the Department of Health regarding this post in June 2009, claiming that it demonstrated “a disregard for patient safety.” Ehling claims that MONOC’s intent in sending these letters was malicious, and that it damaged her employment opportunities and jeopardized her nursing license and paramedic certification.

Ehling sued MONOC and several of its executives in a New Jersey federal court, asserting nine causes of action including a violation of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A: 156A-27, and a common law claim for invasion of privacy. The defendants moved to dismiss those two claims. The court granted the motion as to the wiretapping claim, but denied it as to the invasion of privacy claim.

In regard to the wiretapping claim, the court cited New Jersey precedent holding that the law only applies to interceptions of a transmission while the transmission is occurring. Multiple courts have held that an expectation of privacy is highest during the transmission of data, as opposed to later, when the data has been received and stored. Since MONOC’s alleged acts involved stored data, the wiretapping statute does not apply.

The court acknowledged that little precedent exists on the question of the expectation of privacy in social media. As a general rule, it noted that information made publicly available is no longer “private.” It made a possible exception, however, for information that remains in some way password-protected. Since Ehling had restricted access to her Facebook posts to people she had approved as “friends,” she may have had a heightened expectation of privacy. The court ruled that a motion to dismiss was not the way to resolve the question.

The New Jersey business attorneys at Samuel C. Berger, PC offer fixed-fee packages of legal services to businesses and entrepreneurs who want to do business in New York and northern New Jersey. To speak to a member of our skilled legal team, contact us today online or at (212) 380-8117.

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Five Legal Risks of Social Media for New York and New Jersey Small Businesses, New York & New Jersey Business Lawyer Blog, May 4, 2012
Photo credit: ‘Keansburg, New Jersey’ by Stinkie Pinkie [CC-BY-2.0], via Wikimedia Commons.