United States: Verdict Against Houston´s Restaurant Demonstrates Risks Of Accessing Employee´s Restricted Social Networking Sites

Last Updated: July 16 2009
Article by Philip L. Gordon

Ranting on the Internet about one's employer has become commonplace. When complaints are posted on a publicly accessible Internet page, employers have the same right as anyone in the general public to access the posting, and, except in limited circumstances, can take adverse action based on the posting's content.

As the Hillstone Restaurant Group, owner of the Houston's restaurant chain, recently learned after an adverse jury verdict, employers who access a restricted social networking site without proper authorization face potentially significant exposure under federal and state laws intended to protect personal privacy. With employees becoming increasingly sophisticated about using privacy settings to control access to their personal social networking pages, this risk will become only more significant over time.

Houston's Management Accesses A Restricted Rant Site and Fires the Site's Leaders

Houston's employee Brian Pietrylo established a group on MySpace, called "The Spec-Tator," with the stated purpose of "vent[ing] about any BS we deal with at work without any outside eyes spying in on us." In his opening post, Pietrylo explained that the group was "entirely private and [could] only be joined by invitation." He then urged group members to "let the s**t talking begin." Pietrylo's coworkers, including his co-plaintiff Doreen Marino, took Pietrylo at his word. Over time, Pietrylo, Marino, and their Houston's colleagues posted sexual remarks about Houston's management and customers, jokes about Houston's standards for customer service and quality, and references to violence and illegal drug use.

Karen St. Jean, a Houston's greeter and authorized rant group member, showed The Spec-Tator to a Houston's manager while dining at the manager's home. Subsequently, another Houston's manager asked St. Jean for her password, and St. Jean provided it. This manager and a regional supervisor of operations separately accessed the site. St. Jean testified at her deposition that she did not believe that she would be fired if she had refused the request for her password, but she did think she "would have gotten in some sort of trouble." She also testified that she is "not good under pressure." She admitted thinking that other managers would access The Spec-Tator once she gave her password to one of the Houston's managers.

Pietrylo testified at his deposition that he viewed the site's content as "just joking." Houston's management, however, did not find the site's content to be funny. The regional supervisor who viewed The Spec-Tator testified that he considered its content to be adverse to Houston's four core values of professionalism, positive mental attitude, aim to please, and teamwork. The regional supervisor terminated Pietrylo and Marino.

Proceedings in the Trial Court

In their lawsuit against Houston's owner, Pietrylo and Marino alleged violations of the federal Stored Communications Act and invasion of privacy, among other claims. The federal statute prohibits unauthorized access to electronic communications, such as Internet postings, stored at an electronic communications provider, a term that includes Web hosts such as MySpace, Facebook, and LinkedIn. The Act specifically excludes from this prohibition access "authorized ... by a user of the service with respect to a communication intended for the user." Similarly, under New Jersey law, consent is a defense to a claim for invasion of privacy.

In the summary judgment proceedings, Houston's contended that it had no liability on either claim because St. Jean indisputably had authorized management's access to The Spec-Tator by disclosing her password in response to management's request. The district court rejected this contention, reasoning that St. Jean's deposition testimony created a factual dispute over whether she had freely given her consent. The court noted that "there is a dearth of authority regarding what it means for consent to be freely given." The court itself, however, did not establish a standard. The court merely concluded that St. Jean's deposition testimony regarding her concern over a potentially adverse employment action had she not disclosed her password created a factual dispute that required a jury trial to resolve the question whether St. Jean had freely given her consent.

The jury returned a verdict against Houston's on both the federal Stored Communications Act claim and the invasion of privacy claim. The jury awarded Marino nothing on her claim for emotional distress. (Pietrylo did not claim emotional distress.) However, the jury awarded each plaintiff the maximum backpay that could be awarded — $903 for Marino and $2,500 for Pietrylo, both of whom had quickly found new jobs after Houston's fired them. The jury also found that Houston's had acted maliciously, i.e., had engaged in "intentional wrongdoing in the sense of an evil-minded act." That finding entitled plaintiffs to an award of punitive damages, which the parties had agreed before trial would equal four times any actual damages awarded. The actual damages awarded also triggered the Stored Communications Act's right of an aggrieved party to recover attorneys' fees, although the trial court has not awarded fees as of this writing.

The jury instructions and jury questionnaire shed some light on the jury's thinking. With respect to the federal Stored Communications Act claim, both the jury instructions and the jury questionnaire focused on the state of mind of the Houston's managers who accessed The Spec-Tator, rather than on St. Jean's state of mind, when she disclosed the password. Thus, the jury answered "Yes" to the question, "Did Houston's knowingly or intentionally or purposely access The Spec-Tator without authorization from Karen St. Jean?" On the invasion of privacy claim, the jury found that The Spec-Tator was "a place of solitude and seclusion designed to protect the Plaintiffs' private affairs and concerns," but that plaintiffs had no reasonable expectation of privacy with respect to their statements posted in The Spec-Tator. The most likely explanation for this apparently inconsistent result is that while access to the group's MySpace page was restricted, authorized group members could share their passwords with any person who was not a group member.

Lessons Learned

The jury's verdict demonstrates that employers should tread with caution when accessing an employee's restricted web page. The trial court's willingness to send the case to the jury even though no one in Houston's management had threatened St. Jean in any way and based solely on St. Jean's equivocal testimony concerning her state of mind suggests a relatively high standard for proving that an employee's consent was freely given. At trial, a subtle shift occurred in the inquiry: the jury appeared to focus less on St. Jean's state of mind and more on the state of mind of the Houston's managers who accessed The Spec-Tator. Thus, the jury focused on whether St. Jean actually had informed the managers that she was freely sharing her password with them.

In light of the common assumption that subordinate employees may perceive some element of pressure when asked to respond to management's requests and in the absence of settled authority addressing when a user's consent is valid under the federal Stored Communications Act, employers should consider the following course of action when confronted with the need to access a restricted Web site. First, carefully evaluate the degree of necessity and forego access when the need does not justify the risk. Second, document the voluntary nature of the consent of the employee who provides access in a signed acknowledgement. The documentation could, for example, include the following statements: (a) the employee understands that she is providing a manager with her password; (b) the manager will use the password to access a group site in which other employees participate; and (c) the employee disclosing her password understands that she will not be subject to any discipline or adverse employment action if (i) she does not provide the password, or (ii) she revokes her consent or changes the password at some future date.

Finally, employers should recognize that while the total award in the Houston's case was relatively small, other awards could be much larger. The Plaintiffs in the Houston's case were terminated long before the significant downturn in the economy. In today's economy, backpay awards very well could be larger. In addition, the Stored Communications Act permits for an award of minimum statutory damages of $1,000 per violation. While there is not much case law on the issue, if that provision were read to permit an award of $1,000 per unauthorized access, the multiplier effect could result in substantial statutory damages. Notably, the larger the actual damages award, the greater the likelihood of a substantial punitive damages and fee award.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions