Ehling v. Monmouth-Ocean Hospital Service Corp.

District Court, D. New Jersey
872 F. Supp. 2d 369 (2012)

ELI5:

Rule of Law:

The New Jersey Wiretapping and Electronic Surveillance Control Act does not apply to electronic communications in post-transmission storage, such as a Facebook wall post. However, a user who restricts access to their social media posts may have a reasonable expectation of privacy sufficient to state a claim for the common law tort of intrusion upon seclusion.

Facts:

Deborah Ehling worked as a nurse and paramedic for Monmouth-Ocean Hospital Service Corp. (MONOC) and was also the local union president.
Ehling maintained a Facebook account with privacy settings that made her posts visible only to her approved 'friends'.
Ehling did not 'friend' any members of MONOC management on her Facebook account.
After a shooting at the Washington D.C. Holocaust Museum, Ehling posted a comment on her Facebook wall criticizing paramedics for saving the 88-year-old shooter's life.
A MONOC supervisor allegedly coerced another MONOC employee, who was one of Ehling's Facebook 'friends', to access his account and show the supervisor Ehling's Facebook wall.
After viewing the post, MONOC management copied it and sent letters to the New Jersey Board of Nursing and the Office of Emergency Medical Services, suggesting Ehling's post demonstrated a disregard for patient safety.

Procedural Posture:

Deborah Ehling filed a complaint against Monmouth-Ocean Hospital Service Corp. and two of its executives in the U.S. District Court for the District of New Jersey.
The complaint included claims for violation of the New Jersey Wiretapping and Electronic Surveillance Control Act and common law invasion of privacy.
Defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).

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Issue:

Does an employer's coerced access of an employee's private, 'friends-only' Facebook post state a plausible claim for invasion of privacy under New Jersey common law?

Opinions:

Majority - Martini, J.

Yes. An employer's coerced access to an employee's private, 'friends-only' Facebook post can state a plausible claim for invasion of privacy under New Jersey common law. The court held that the primary question for a claim of intrusion upon seclusion is whether the plaintiff had an objectively reasonable expectation of privacy. While social media privacy is an emerging area of law, a user who actively restricts access to their content, such as by using 'friends-only' settings, may have a reasonable expectation that their posts will not be disseminated further. The reasonableness of this expectation is a highly fact-sensitive inquiry, involving factors like the number of 'friends' who could view the post, and is therefore not suitable for resolution on a motion to dismiss. However, the court dismissed Ehling's claim under the New Jersey Wiretap Act, reasoning that the Act only protects communications during transmission or in temporary storage incidental to transmission, not communications in 'post-transmission storage' like a Facebook wall post.

Analysis:

This case is significant for being one of the first to address the reasonable expectation of privacy in the context of 'private' social media settings. The decision establishes that restricting a social media profile to a limited audience can create a plausible legal claim for an expectation of privacy, distinguishing such content from information posted on a fully public website. It placed 'friends-only' social media content in a legally gray area between public forums and private communications like email, making the determination of privacy a fact-specific inquiry for a jury. This ruling signaled to employers that accessing employees' private social media content, even through third parties, carries a significant legal risk of an invasion of privacy claim.

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