The decision relieves Hewlett-Packard spin-off
Agilent of any responsibility for actions carried out by its
employees which, though not carried out on behalf of the company,
did use the company's infrastructure.
An Agilent employee sent and posted
threatening messages directed against employees of another company,
Varian, using work-provided email and internet access.
Those people won a court case against the
employee and a $1 million award. They then took a case against
Agilent, which they have lost.
The protection extended to Agilent by the
court is under Section 230 of the Communications Decency Act, which
protects companies against liability for the actions of people to
whom they provide communications services.
Designed to protect ISPs from liability for
the comments and actions of their customers, the section of the Act
was made to apply to Agilent. The court found that the company met
the definition in the Act of an "interactive computer service",
that it provided those services to many users and connected those
users to a server and on to the internet. It was, therefore,
entitled to protection from the uses to which its users put it,
said the court.
Companies are not liable for all the actions
of employees, even on company equipment or services, either in the
US or the UK. The employee in question was eventually fired for
violation of company email policies in relation to the activities
that became the subject of the court cases.
In both US and UK law an employer can only be
liable if the actions undertaken have some relation to the
activities of the company.
"Under UK law an employer will only be liable
for the negligent acts of its employees if they are committed in
the course of the employment," said Ben Doherty, an employment
specialist with Pinsent Masons, the law firm behind OUT-LAW.COM.
"Should the employee engage in a 'frolic of his own', the employer
will not be liable."
There are some classes of behaviour, though,
which an employer can be held responsible for even if it was
unrelated to the work of the employer.
"The position is different under the Sex
Discrimination Act," said Doherty. "There, an employer may be
liable for the acts of an employee unless they are able to
demonstrate that they have done everything reasonable to prevent
the act of discrimination."
Section 230 of the Communications Decency Act
has provoked controversy before. It grants immunity to message
board hosts and ISPs in relation to defamation, even after the host
or ISP has been notified that a comment or article is defamatory.
By contrast, in Europe the host must remove content once it has
been shown to be defamatory.
