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Abstract

Communications systems are now wide open and fully accessible, with no limits in range, scope or geography. Targeted audiences are accessible with pinpoint accuracy. Messages reach millions of readers with one click. There is a chat room for everyone. Most importantly, there is no limit on content. Therefore, employees can register their dissatisfaction by posting a message in a chat room. Moreover, the identity of the posting employee is not easily discoverable due to anonymous and pseudonymous communications capabilities. The nature of these online messages is qualitatively different from real-world communications. By way of example, newspapers have a responsibility regarding the veracity of the content that they print. Sponsors of online bulletin board services do not bear the same level of responsibility. In cyberspace chatrooms, everyone is a publisher; there are no editors. Online messages reflect this, too. The culture of online communications is vastly different from traditional discourse, in that the former tolerates and even encourages the use of hyperbole, crudeness, acronyms, misspellings, and misuse of language. It is a fast and loose atmosphere, emphasizing speed rather than accuracy. This is the current environment in which anonymous employees post negative statements about their employers. The questions raised in this article relate to management's response, in the form of John Doe lawsuits, to this recent spate of negative Internet postings by employees. The emergence of the Internet as the medium of choice for such communications raises a myriad of questions that are new to courts. Questions arise regarding the extent to which employers may control the speech of current employees or former employees and, as a corollary to this, the extent to which such speech is protected, as well as whether this attempted speech control violates public policy. Such suits have just begun to reach the courts, and their resolution will form the contours of employee freedom of speech in the Internet age. John Doe suits implicate constitutional and common law issues ranging from the First Amendment to privacy, defamation, breach of employment agreement, and trade secret laws. Such suits involve statutes as well, including whistle-blower protections and Strategic Litigation Against Public Participation ("SLAPP") laws. Negative postings by employees also correlate to general economic conditions. During the current two year downturn in the financial markets, for example, there has been a tremendous increase in such postings. Employers have just begun to reply to these allegedly defamatory postings--in the form of John Doe lawsuits. Because it is difficult to discern who is speaking in cyberspace, plaintiffs often file a lawsuit listing "John Doe" as the defendant. Plaintiffs then invoke the power of a subpoena to compel the Internet Service Provider ("ISP") or Bulletin Board Service ("BBS") on which the posting was made to identify the poster, thereby unmasking these anonymous and pseudonymous individuals. It is worth noting that plaintiffs have an alternative course of action, in that they could investigate the postings and discover for themselves who is posting the messages. It is not clear whether any more effort or expense is involved in this strategy than immediately invoking the assistance--and the power--of the judicial system. But it is fair to say that involving the judicial system at this earliest stage is a coercive, and effective, strategy.

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