Employer Strategies to Respond to “Cybersmears”, Part 3

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Part 3 of this news posting presents the methods employers can implement for the third level of three strategies to resolve cypersmearing situations.

The third-level strategy is to look to the laws and courts for an answer. For example, if an employer cannot discover the name of a cypersmearer, the employer can file a”John Doe” lawsuit. Its purpose is to request a subpoena that forces the owner of the Web site where the cypersmear appears to provide information that reveals the cypersmearer’s identity. If an employer can obtain such a subpoena and the name of the employee, then the employer can apply the appropriate discipline, internally, without any further need of the courts. Employers should be aware, however, that not every subpoena request for this purpose would be granted because it may violate the employee’s First Amendment rights. Even when a court may consider issuing such a subpoena, the employer is required to demonstrate he or she has taken certain steps first.

  • The plaintiff, or employer, may have to announce that the subpoena has been sought via the Web site, blog or other methods, so the unidentified cypersmearer is aware that legal action is pending.
  • The employer must present the specific smearer’s comments that are allegedly libelous or harmful to the business, according to the law; and those allegations must be strong enough to be considered credible by the court.

Employers must rely on legal counsel to educate them about the exact definition of libel and how the courts tend to rule in these cases. For example, a cypersmear is not libelous if its contents are true, even though that truth may be stated harshly or in language that angers the employer.

Cypersmearing is another example of why employers should include very detailed explanations of the company’s computer and Internet policies in their employee handbooks. This is a much less costly solution than legal proceedings, other investigative tools and the time required.

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