Zachary Cantor is an employment attorney and principal of Cantor Law of Santa Monica, Calif.
Is it a problem to have a nude photo of yourself on your cellphone?
It sure turned into one for Leigh Anne Arthur, who was forced to resign her South Carolina high school teaching job of 13 years after a student got a personal photo off her cell phone and circulated it to classmates via text and social media.
Arthur, 33, told police on Feb. 18 that while she stepped out of her classroom, a boy took her unlocked smartphone from her desk, opened the photos app and found a nude selfie she had taken for her husband for Valentine’s Day, the Associated Press reported.
Although the 16-year-old student was charged by authorities with violating the state’s computer crime act and with aggravated voyeurism, should Arthur also have been held accountable— in the loss of her job—for unknowingly exposing her students to an explicit photo?
As an attorney specializing in employment law, I’ve often seen employers use social media posts, text messages and tweets as excuses to fire employees, or at least censure them. For example, a seemingly innocent “having the time of my life” Facebook photo post can be used to discredit an employee. People frequently disclose too much about themselves on social media, and often at the wrong time. That is why I instruct clients not to post anything on social media while a case is pending.
Employees may contend they have a right of privacy, at least as to their own social media. But this stopped being the case with the California Court of Appeal decision in Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125. The court found that by posting on Myspace.com, the material on the plaintiff profile was provided “to the public at large. Her potential audience was vast.” The court reasoned that Myspace.com is “a hugely popular Internet site,” and that “no reasonable person would have had an expectation of privacy” regarding postings on the site. Despite whatever privacy settings an employee may have in place, social-networking sites are not private, because profiles are available for so many to see.
Your privacy also goes out the window when you’re posting from your employer’s computer.
In Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1069, an employee e-mailed her attorney over her company computer with the particulars of a potential sexual harassment claim.
But company policy—of which Holmes was well aware—provided that company computers were to be used only for company business; the company could monitor its computers for compliance with this policy and thus could “inspect all files and messages at any time.” It also stated that employees “have no right of privacy with respect to that information or message.” The court declined to uphold attorney-client privilege because Holmes knew third parties could have listened in.
These days, we should be aware of and accustomed to surveillance. In the age of red light cameras and global positioning satellites, we tend to ignore all of these electronic eyes. We act as if our tweets, posts and texts are hidden from public view, even when we are using company-issued electronic devices. But the trend in the law is just the opposite; rather than creating a broad expectation of privacy, the Holmes decision ushered in a new expectation of responsibility.
This is why the onus is wholly on attorneys, employees and employers to use discretion. We must act as if every tweet, post and text could end up splashed across the front page of the Times, or as an exhibit at trial.
Still, what does this mean for private information on a password-protected phone?
Simply put, if a phone belongs to the employer, a password may not save the employee’s job—though it may limit the passerby from snooping and disseminating intimate photos.
Thus, two questions will determine the outcome of Leigh Anne Arthur’s case: 1) Regardless of whether the phone is hers or her employer’s, what was the employer’s policy about phone use and accessibility?
And 2) Given the open and vulnerable nature of a classroom environment, should she have been expected to lock and encrypt the phone?
It appears that both the teacher and the student were irresponsible. While Arthur clearly has a privacy interest in her phone’s contents, she is expected as a teacher to be extra vigilant about keeping inappropriate stimuli away from children. The student, on the other hand, cannot evade responsibility for snooping inside the teachers phone, because even an unlocked device requires additional steps to find and forward a photo.
In this digital age, private space and public domain are usually just a click away. Ultimately, the lesson from Leigh Anne Arthur’s case and the court decisions above are that responsibility is the only guidepost in navigating between the “real world” and the “digital world.”
So, if you wouldn’t want your grandmother to see it or you wouldn’t want to explain it to a jury, keep it off your phone. And for heaven’s sake, don’t post it!
[image via shutterstock]