The Monsters of the Digital Age

by JD Supra Perspectives
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[The latest in a series in which we ask JD Supra contributors to address the perils, legal or otherwise, of being an online citizen today, and all that entails. Stay tuned for additional articles in this theme.]

Trolls. Until recently, they only existed in the pages of J. R. R. Tolkien’s The Lord of the Rings. Now they’re online.

Like the beasts of Tolkien’s imagination, digital trolls skulk around the internet shrouded in anonymity, unprovoked yet fiercely attacking the unwary. These trolls are individuals who use anonymous screen names to post deliberately inflammatory or provocative messages with the intent to cause disturbances and/or arguments for their own amusement.

In the aftermath of Robin Williams’ death, his daughter, Zelda Williams, was the victim of trolls. Their comments on her Twitter feed blamed Ms. Williams for her father’s death. They posted graphic, photoshopped pictures of the late Mr. Williams to his daughter’s social media accounts. Ms. Williams received dozens of these hateful messages from numerous accounts with different screen names. Even the monikers themselves were incendiary in their own right (e.g., @GetCancerPlease). Ms. Williams  closed her social media accounts in the wake of these vicious assaults.

Practically speaking, trolls are nearly impossible to stop. According to The Washington Post, the trolls’ posts to Ms. Williams’ social media pages were most likely from a handful of individuals using multiple online aliases. This is a key problem with troll attacks – if one account is banned or deleted by the social media provider, ten fresh new ones quickly spring up to replace it.

In the context of harassment, courts view statements or pictures sent or posted via social media, text message or other electronic sources no differently than offensive verbal comments or lewd Polaroids left on a co-worker’s desk...

But what happens when trolls invade the online workplace? What happens when an employee suspects offensive or harassing social media comments are coming from a disgruntled co-worker, an angry customer or someone who attacks them for no reason other than (possibly) their affiliation with a particular company?

In the context of harassment, courts view statements or pictures sent or posted via social media, text message or other electronic sources no differently than offensive verbal comments or lewd Polaroids left on a co-worker’s desk. Courts and administrative bodies across the country have held that online harassment is analyzed under the same legal standards applied to traditional claims. For example, in Espinoza v. County of Orange, a 2012 case from California, the court upheld a $1.6 million jury verdict against an employer after one of its employees was harassed by a co-worker on a blog. Similarly, an employer, Fry’s Electronics, paid $2.3 million to settle a sexual harassment and retaliation lawsuit brought by the Equal Employment Opportunity Commission, which alleged that the company failed to take appropriate action to stop an employee’s supervisor from sending sexually charged text messages to a subordinate.

Thus, it is  clear that companies should take allegations of online or other electronic harassment seriously. As a first step, employers should create, update and enforce a strong social media policy. A good social media policy should make clear that any harassment – whether in person or online, during work or after hours – violates the company’s policy. The policy should also be clear that the company takes allegations of conduct like e-harassment seriously, and employees who violate the policy will be subject to disciplinary action. While employers should be mindful of the National Labor Relations Board’s stance on social media policies and the potential for chilling “protected concerted activities,” a well-drafted and clear policy can still be an important tool.

Until technology finds a successful way to bring today’s digital trolls out of the shadows of anonymity and into the sunshine, being proactive and prepared is an employer’s best defense against these marauding monsters...

If an employee makes allegations of online harassment, an employer should conduct a prompt investigation regarding the allegations. When discussing trolls, it is easy to imagine a scenario when an employee complains of an online attack that he sincerely believes – but cannot prove – is by a co-worker. However, even in those situations when an employer may not be able to definitively establish the identity of the harasser, conducting an investigation is itself a defense to any later claims that may arise. If the investigation establishes that harassment took place, the employer should take prompt, remedial action against the perpetrator. The response should be tailored to the violation, in accordance with any progressive discipline policy of the company.

Finally, while employers may ultimately be powerless to stop anonymous online harassment, companies should proactively conduct workplace training regarding the company’s policies on online activity and harassment. Further, companies may want to consider including practical guidance on how to protect oneself online (e.g., use restrictive privacy settings, do not post private information).

Ultimately, harassment is harassment, regardless of the medium. Employers have a responsibility to take allegations of harassment seriously – whether it occurs in person or online. Allegations of offensive conduct affecting the workplace should be investigated promptly and thoroughly.

Tolkien’s trolls were turned to stone when touched by sunlight. Until technology finds a successful way to bring today’s digital trolls out of the shadows of anonymity and into the sunshine, being proactive and prepared is an employer’s best defense against these marauding monsters.

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[Evan Gibbs is an associate with Constangy, Brooks & Smith LLP, which recently launched a new e-law service group to address the impact of technology in the workplace.]

Image credit: Behind the Voice Actors

 

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