Legal Times Article
The Pig Book Is Not Kosher
Most law firms have websites, and one of the most common features found on the various law firm websites are photographs of the lawyers in the firm. There is a universal belief that it is useful and helpful for a new client, if they have not met the attorney, to be able to see a photograph, as it establishes a more personalized relationship. It could never be to anyone's benefit to have their lawyer appear to be a perfect stranger, some disembodied voice over the telephone. Posting a picture of firm members on the web provides an inexpensive way of humanizing the firm and creating a much better attorney client relationship. As our legal practices become less localized and are more regional and/or national, the opportunity to meet one's client is decreasing. As such online pictures have taken on a greater degree of importance.
You would think that this concept would be a no brainer. Alas, nothing is as simple as it initially appears. Davis Polk, like most law firms, posted photographs of its lawyers on its website as it too believed it to be a good marketing opportunity. Unfortunately, a number of female associates, whose pictures were posted along with the photographs of the rest of the firm, received email from strangers, the content of which was not appreciated by the women associates. From the news reports of the incident it appeared that the comments were fairly benign but had a sexual undertones. What was clear is that the emails were a result of the attorneys' pictures having been viewed on the firm website. The associates complained and Davis Polk pulled all attorney pictures off it's website.
After reading the initial news report on this case issues came to mind which provided a basis for potential exposure to law firms or any entity that posts pictures of employees on the web. If the posting of pictures on a website results in a series of sexual comments being sent to women of the firm, does this create a hostile work environment subjecting the employer to sex discrimination claims? If, even worse, a female employee who's picture was posted on the web becomes a victim of stalking or an assault and it turns out that the perpetrator became aware of this person via her picture being posted by an employer or corporation on its website, would this provide an avenue for a claim to be made against the employer? What type of balancing does a law firm or an employer need to take if they want to post pictures of, or for that matter any personal information about, their employees on their website?
In regards to finding guidance as to whether or not a law firm or company created a sexually hostile environment based on computer usage and their obligations, one can look at the developed body of law that deals with e-mail. I think it is fairly clear that when e-mails are used to sexually harass an individual on companies' or firms' computers, the company certainly will have exposure if they are put on notice of the potential problems (perhaps even without notice). As the firm's websites that display the pictures are owned and controlled by the law firms or companies which post them, they might very well fall subject to the same liabilities as from complaints generated by e-mail abuse.
Because of the large reach of the web, activities which in a more constrained context might have been harmless, because of the wide reach of the web and the accessibility that it provides, make the once benign, appropriate conduct inappropriate. From our first day in college where as freshmen our pictures were put in books (which were affectionately known as "pig books") to the time when our pictures as employees are put in various corporate publications, these types of activities have for decades been undertaken without a problem. It is possible and would be a shame if new technologies and the new liability they bring with them preclude these otherwise appropriate and useful activities.
Additionally, another issue raised by employee web pictures, but which probably has not been given much thought, is that use by firms and companies of their employees' likenesses could trigger violation of the various States Right of Publicity laws. Most States in the United States have laws which govern the use of one's name and likeness. A Release should be obtained from any employee before using his or her name and/or likeness online (for that matter in any hard copy publication as well.) Certain jurisdictions require that the consent be in writing (e.g. New York). Therefore, any oral or implied consent would not be honored in those jurisdictions. One would not be hard pressed to imagine claims by a disgruntled employees stating that they had not wished their pictures to be online, that they had received objectionable responses to it and then testified that they had only acquiesced to the publication of their image online without complaining because they were intimidated. Therefore, prudence would dictate that, before posting images online, companies obtain releases. Properly drafting the release could cover all of the issues raised, not just publicity rights.
Even more ingrained in firms and business communities than websites are their voicemail systems. You would be hard pressed to find even the smallest law firm or business that does not have some form of voicemail. New forms of exposure for law firms and employers generally are cropping up, because of voicemail implementation. In the past when people called a firm or a company they spoke with a receptionist and if there were any type of crank or inappropriate calls they were readily stopped. Preventive and simple measures dealing with inappropriate calls were relatively simple to deal with. AP recently reported that an individual in Chicago sued his employer for failing to properly secure the company's voicemail system. Apparently, the individual complained to his employer that someone had hacked into the system (it appears to have been an internal use only system) and was leaving offensive voicemail messages about him to a wide variety of recipients. The employer, Jewel Food Store and its parent, American Food Stores, were sued by their employee, Mr. Gary Thompson. Mr. Thompson claimed that on at least five occasions commencing in 1996 an individual who was posing as a private investigator, who claims that he had been hired by the company, left derogatory messages that were false in voicemail boxes of hundreds of different American Food Store employees. The employees were located throughout the United States. Mr. Thompson alleged that the messages contained allegations that he cheated on his wife with company secretaries, stole from the company, had HIV and was a drug user. He stated that, "I started being treated differently immediately after the first message, work associates stop shaking my hands." Mr. Thompson is now on disability leave after suffering from, what he described as, severe depression. One truly perverse incident occurred to Mr. Thompson when he found a note on the front seat of his car in which the author stated they understood that he was dying from AIDS and wanted to know how to apply for his reserved parking spot. Mr. Thompson, who filed a $50,000 claim against his employer and named as defendant, John Doe, the alleged perpetrator of the information who to date has remained nameless. Mr. Thompson believes it is an employee whom he terminated.
A company spokesman for Jewel stated, "we believe that the allegations were unfounded. The company took immediate appropriate action in response to the unauthorized voicemail messages in question. Whether or not Jewel acted appropriately or not begs the overall question of the additional liabilities and exposures that employers, be they law firms or companies, are beginning to incur as a result of the implementation of new technologies. While each new technology advance brings with it added productivity and quicker communication, these gains are not without their price.
Joshua Kaufman is a partner in the Washington, D.C. law firm Tucker Flyer, P.C. in the Intellectual Property and Technology & E-commerce practice groups.