A Question of Internet Privacy and Social Networking

THE CASE
In the first case of its kind, Pietrylo v Hillstone Restaurant Group, Docket No. 2:06-cv-05754, U.S. District Court in New Jersey, Ramp & Pisani represents two fired employees, who were fired by their former employer for allegedly making derogatory comments about their jobs outside of work on a private MySpace group page. The case has received media attention. The case has been featured on ABC: Eyewitness News (March 16, 2009); CNN: American Morning (May 4, 2009); Wall Street Journal (April 23, 2009); AOL- National News (May 4-5, 2009); and The New Jersey Law Journal (March 2, 2009).

The plaintiffs are two former employees, Brian Pietrylo and Doreen Marino, who were discharged in May 2006 from a company that owns a chain of restaurants in Northern New Jersey called Houston's.

According to court filed documents, Mr. Pietrylo created a MySpace group page called " The Spec-Tator" as a place for Houston's employees to "vent about any BS" they encountered at work. He elected all of the privacy controls offered by MySpace in setting up the page. The group was designated as "private", meaning access to the group was limited to MySpace users who received an invitation from Mr. Pietrylo. Only Mr. Pietrylo, not invited members, could send out invitations. Mr. Pietrylo invited several Houston 's employees, but no managers or upper management personnel. The invitees included a female Houston's greeter.

The greeter accepted the invitation and became an authorized member of The Spec-tator. Access to the group page was through the member's email address and personal, private password.

Thereafter, one of Houston's managers called the greeter into a meeting while she was working and asked her to provide him with her personal login information so he could access the page. She did so, although she testified later, that she did so only because she thought something would happen to her if she did not.

This manager went on the page using the greeter's information and copied the postings on the page. The greeter's information was passed up the corporate ladder to other members of upper management. The page was accessed a number of times and subsequently Houston's terminated Mr. Pietrylo and Ms. Marino based on their comments on the site and their involvement in creating it.

Ramp & Pisani filed suit on their behalf alleging, amongst other things, that their terminations violated their right to privacy, free speech, public policy in the form of the common law right of privacy in the workplace, and federal and state statutes involving improper access to stored electronic communications.

After nearly three years of litigation, involving extensive discovery and motion practice, the case is ready for trial. A jury will decide plaintiff's claims. The trial is scheduled to begin on June 9, 2009, before the Honorable Faith Hochberg at the US District Courthouse in Newark, New Jersey.

THE VERDICT
A verdict was returned in September 2009. The verdict was that Houston's managers had entered the MySpace site "without authorization" and had acted "maliciously." "They basically said keep out to an employer who pries into the private online communications of their employees," Marino's attorney, Fred Pisani, said. "Especially when it occurs out of the workplace." One waitress' battle against a corporation is now likely to set precedence in the legal frontier of cyberspace.

"I'll say to anyone that one person can make a difference," Marino said.

The restaurant chain appealed the verdict, but that appeal was recently denied. Doreen and her boyfriend will receive a couple of thousand dollars in back pay.