I spoke at our Toronto client conference on Monday on two topics. The first was on a topic we called, “The limits of the application game: why employee privacy matters.” It’s on our “patchwork” of employment privacy regulation and the state of the privacy tort. I wrote a paper that should be available for public consumption later, at which point I’ll link to it from here. I also spoke on “The perils of online communication” together with my colleague Mark Mason. We laid out the relevant legal issues, made some policy prescriptions and also discussed some of tactical considerations in responding harmful employee and student communication. I don’t have a full set of notes to publish, but here’s one idea we expressed on the dangers of over-reaching:
You’ll also likely send a cease and desist letter directly to the individual. Here’s the word of warning. Before you send a cease and desist you have to reckon with the risk of a backlash. There’s a community of people who use the internet who value it as a free speech medium. If you send an aggressive letter that targets communication that is lawful, you risk a severe backlash from that community. You could find your cease and desist letter posted online, you could be blogged about and you could have your minor communication issue become magnified 1,000 times over. And that’s not even an exaggeration!
So you have to create a cease and desist that is both firm on the law and demonstrative of a reasonable and measured approach – it has to be consistent with how your organization presents itself to the public so you can be proud of it and stand behind it to the very end. If you don’t have a solid legal claim that supports this approach and you still need to take action, send a different letter. Use a carrot and not a stick. Tell the person you’d be glad to discuss their concern or collaborate in some way but that they have to take down their communication first. It’s not as strong, and you have to be wary of setting a pay-out precedent, but with some creative thinking you may find an out without suffering a backlash because you over-reached. You shouldn’t be intimidated by the masses, but understand that its hard to bluff them with a bogus claim.