Firms strike back at employees, others who post discontent on Net

By Diane E. Lewis, Globe Staff, 11/21/99

o programmer Bill Silverstein, the Internet was the most practical place to publicize the lawsuit he'd filed against his former employers in 1998. But Microsystems Software Inc. and its parent, Cambridge-based Learning Co., saw things differently: They filed a counterclaim in Middlesex Superior Court last year alleging libel.

In September, the legal skirmish - which the companies had paid Silverstein $140,000 earlier this year to settle - took an unusual turn. Silverstein, now of Austin, Texas, filed a complaint with the Massachusetts Commission Against Discrimination alleging that Mattel Inc., now parent of the Learning Co., was violating his right to free speech by attempting to use the state's libel law to bully him into shutting down his Web site, www.sorehands.com.

''This is an abuse of the court system,'' said Boston attorney Philip Olenick, who represents Silverstein. ''You can't use libel law to crush free speech.''

Like it or not, the Internet has given current and former employees more power to air their concerns than employers ever dreamed. Thousands of workers are logging on to sites that now serve as Web-based newsletters for the discontented. These sites range from the impudent walmartsucks.com, which was designed two years ago by an irate consumer who expanded it to include an employee comment page, to the more benign pension club sites created by Bell Atlantic and IBM employees. One Web site, bitterwaitress.com, was established by a disgruntled New York waiter who believed food-service employees needed a place to vent their anger over stingy customers and demanding bosses.

But a growing concern about the impact these Internet gripe sessions are having on public image and company revenues has caused some employers to fight back by using the law to crack down on message boards and Web sites - a move free-speech advocates denounce. They maintain reliance on the courts to curb employee-Internet kvetches could result in precedents that could threaten free speech on the World Wide Web.

Earlier this year, Raytheon Co. of Lexington acquired subpoenas that forced California-based Yahoo Inc., operator of an Internet message board, to reveal the identities behind the code names of two Raytheon employees who had criticized the defense giant on line.

In a similar case, American Online turned over the name of a disgruntled newspaper employee to the Orange County Register in Santa Ana, Calif. The now-defunct Internet site, under the direction of an AOL customer called Slave40CR, had served as a forum for company employees. It contained everything from rumors and gossip to statements critical of the newspaper's management.

Now there is Learning Co.'s counterclaim against Silverstein, one of the first cases in which an employer has sued an ex-worker for using a Web site to publicize the details of a lawsuit. The original lawsuit alleged the company illegally fired the 37-year-old computer programmer after he developed carpal tunnel syndrome.

Boston lawyer Michael Rosen, who represents Mattel, last week declined comment on the countersuit. He said the big toy maker has a policy of not discussing pending litigation with the press.

''These cases are clearly a reaction to the unprecedented voice the Internet has given individuals who had no voice in the past,'' said David Sobel, general counsel for the Electronic Privacy Information Center in Washington, D.C.

''Companies were used to a world where they could control the message. Now, the Internet is changing that dynamic,'' he said. ''So they are attempting to stifle that criticism.''

Not surprising, such cases have raised a slew of questions about libel and free speech on the Internet. Should Internet service providers be shielded from liability for information they did not post? Should new standards in privacy and copyright law be developed for cyberspace? And where do courts draw the line between free speech and slander on the Web?

''Companies have always resorted to the courts to attempt to rein in wayward employees or ex-employees,'' said Paul Stanzler, chairman of the employment law group at Burns & Levinson LLP in Boston. ''The classic case is the employee who gives away trade secrets. Now, there is a new twist: the worker who leaves and then disparages the company via a free medium, the Internet.''

Stanzler, who represents corporations, believes free speech advocates' concerns may be overblown. He maintains that when rumors, or privileged information, is posted on the Web, companies have a right to protect themselves against those postings that could damage their reputations or their competitive advantage.

At the same time, he said, the Internet is a tool employees and unions can use to get their views across. Still, a lot depends on the content of the statements posted.

''If employees are expressing personal opinions or publishing truthful statements, they are beyond the reach of a defamation suit,'' Stanzler said. ''But false statements that paint a party in a bad light are defamatory and can be the basis for a lawsuit.''

When America Online agreed to provide the Orange County Register with the name of the employee whose Web site had lampooned the newspaper, free-speech advocates cried foul. They noted that although rumors and inaccurate information could result in a viable legal challenge, parody is allowed under libel law. And they criticized the newspaper's parent, Freedom Communications Inc. of Irvine, Calif., for using a lawsuit to force AOL into revealing the identity of the employee.

''If companies use the discovery process to strip Internet communications of anonymity, people will not use the Internet. Free speech will be chilled,'' said Ethan Preston, legal researcher at the Electronic Privacy Information Center in Washington, D.C.

In the past, AOL and other providers have argued that they were not liable for the postings of a subscriber. In this case, the company had noted in its service policy that names could be revealed only in the event of a legal command such as subpoena or warrant.

In another suit filed by a Massachusetts firm, Stone & Webster last spring sought damages against 20 people who, it alleged, had made false statements about the company or disclosed privileged information on line. One of the postings described a confidential memo.

Last week, however, a company spokesman said Stone & Webster was not actively pursuing the case, but noted that it was still pending.

Olenick, Silverstein's lawyer, maintains more and more companies are taking these aggressive actions to scare employees and critics from posting critical statements on line.

''One way to scare employees,'' he said, ''is to sue them.''

California attorney Cindy Cohn, whose practice includes Internet cases, believes the growth of Internet use is challenging the law ''to operate in new contexts.''

''I don't think there is going to be new laws about certain behaviors [in cyberspace], but we do face the challenge of applying our current laws to people who are doing the same things in slightly different ways over the Internet,'' she said.

''There are some who believe that having a Web site is more intrusive than a picket line,'' Cohn added. ''But I believe the only difference is that you can reach a lot more people.''

Silverstein's original lawsuit against Microsystems Software Inc. of Framingham alleged he was given demeaning jobs, scrutinized, and eventually fired for reporting that he was experiencing pains in his hands, and for taking a medical leave for acupuncture treatment in China.

Silverstein claims that after the settlement agreement this year, Mattel said it would drop the counterclaim under one condition: That Silverstein shut down his Web site.

Mattel has declined to discuss the case, but Silverstein had a lot to say about the counterclaim, which he maintains is a form of malicious prosecution.

''I am not publishing information that is untrue or defamatory,'' he said. ''Some of it is public information. Some of it is advice to people who suffer from carpal tunnel.''

The site includes information about the medical condition and the complaints filed in the original court case, which are now public record.

Silverstein also claims Mattel informed him that, as a condition of shutting the Web site, he must promise not to talk about the case, or risk a charge of $50,000 each time he blabs.

''What is happening here is very clear to me,'' he said. ''They are trying to shut me up.''