Firing by Facebook

Facebook Although just bad practice in the United States, Minna Kotkin (Brooklyn) brings to my attention a case in Canada where the cavalier nature of a firing may lead to bad faith damages being awarded against the offending employer.

Carolyn Elefant of Legal Blog Watch Blog reports:

These days, Facebook isn’t just a go-to social media application. The Web site’s ubiquitous role in everyday life is also transforming it into a conduit for lawsuits. A few weeks back, I posed about the Australian court that allowed lawyers to serve a couple with lawsuit papers via Facebook. Now, the Calgary Herald reports that a Canadian spa used Facebook to fire an an employee, esthetician Crystal Bell.

Is it illlegal for an employer to fire a worker via Facebook, or just imprudent? Here in the United States where employment is entirely at will, there aren’t any laws, at least as far as I’m aware, that would protect an employee from being fired on Facebook. However, the Supreme Court of Canada, in a 1997 ruling known as the Wallace decision, set out how a firing, if done in a cavalier way, can result in “bad faith”damages in addition to normal severance pay. However, the ruling does not address the issue of whether being fired electronically equates with bad faith. Moreover, at least one lawyer whom Bell contacted advised that she didn’t have much of a case — she’d only been at the spa for two weeks.

Putting aside the merits of this specific case, the cause of action that comes to mind for me is the tort of intentional infliction of emotional distress, since the focus is the manner in which the employee has been fired. Yet, I am not convinced that Facebook firings, which are certainly in bad taste and demonstrate a lack of tact, would probably not meet the standard of extreme outrageousness, which would require the action taken be: “utterly intolerable in a civilized society.”

Indeed, the ubiquity of Facebook and the amount of communications taking place over it might make such electronic terminations seem more conventional than outrageous.

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Seventh Circuit Week in Review, Part II: Attempted Enticement of a Minor

As I mentioned in the first installment of “Week in Review,” the Seventh Circuit decided two cases this past week arising from convictions for attempted enticement of a minor to engage in sexual activity.  As a general matter, one is not guilty of a criminal attempt unless one takes a “substantial step” towards the completion of the intended crime.  This is a rather vague standard, and courts have struggled to delineate exactly how far a person must travel down the criminal path in order to become liable for an attempt. 

Earlier this year, the Seventh Circuit addressed the question in another enticement case, United States v. Gladish, 536 F.3d 646 (7th Cir. 2008).  Gladish was caught in an Internet sting.  A government agent posing as a fourteen-year-old girl encountered Gladish in an Internet chat room.  After engaging in sexually graphic communications, the two “agreed” to have sex, resulting in Gladish’s arrest.  However, the Seventh Circuit determined that Gladish’s plan did not proceed far enough to support an attempt conviction: despite the agreement to have sex, there was never any specific time or place determined for the tryst.  Without something more than graphic Internet communications and a vague agreement, there was no “substantial step” and, hence, no attempt liability.

The two new opinions, both authored by Judge Wood, elaborate on the meaning of Gladish, but still leave the “substantial step” line more gray than black and white.

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Eric Goldman on the Lori Drew Case

Former Marquette law professor Eric Goldman is posting a three-part series on his blog on the Lori Drew/Myspace “cyberbullying” case, in which the prosecution won a conviction based on an extremely broad interpretation of the Computer Fraud and Abuse Act. Basically, Drew was convicted of a misdemeanor for violating MySpace’s terms and conditions. Goldman is always worth reading on these matters; I cite him explicitly to my Internet law students every year for the proposition that if you can’t demonstrate $5,000 of “loss” under the CFAA, you’re just not thinking hard enough.

Part 1 of Goldman’s series discusses the possibility that, under the prosecution’s theory, ISPs may lose their Section 230 immunity for the activities of users if those users violate the terms of some other website. Part 2 looks at the question of whether someone who does not actually click on a click-through agreement can nevertheless be bound by it. Courts in the few non-criminal cases to consider this have essentially said “yes.” Part 3 will offer suggestions for drafters of website terms. [Update: Part 3 is now up.]

In other news related to the case, the defense, assisted by George Washington University law professor Orin Kerr, has filed a supplemental brief on its motion to dismiss, on the question of whether violation of contractual terms vitiates consent for purposes of a criminal unauthorized use statute. In true Internet law fashion, they look to the nearest litigated real-world analogues, in this case rental car agreements.

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