Tammy Katsabian, PhD student (under the guidance of Prof. Guy Davidov), research fellow of the Cyber Law Program

(Based on an article that was not published yet)

Justin Sacco used to run the PR department of one of the largest American media and internet companies. She was admired by her colleagues and her manager as a successful PR executive. She was also a cynical and amusing woman, often in a non-PC way. On December 2013, during a personal vacation, Sacco tweeted the following provocative joke to her 170 followers on Twitter: “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” Within thus a few hours, the tweet spread like wildfire. Many people found Sacco’s joke racist and wrote to her employer demanding that she be dismissed. Within just a couple of days from the publication of the offensive tweet, Sacco was dismissed from her job and remained unemployed for a protracted period – presumably because any potential employer could easily access the story by Googling Sacco’s name. The collective scrutiny of Sacco and the social online shaming she experienced effectively prevented her from starting over again and finding a new position.

Sacco’s story forms part of a broader social phenomenon in the internet age, in which the private life and individual attributes are mixed together with public and professional space. In a forthcoming article forming part of my PhD dissertation, I seek to demonstrate how this blurring of the once-clear dichotomy between the private and the public is the result of the growing use of virtual technology, the internet platform, and social media sites in particular. As a result, the ability to enter the employee’s private space and violate her right to a private life protected from the supervising eye of the employer (i.e. to violate employee’s privacy) has increased dramatically in the internet age.

This constant violation of privacy takes place on three different levels:

First, on the employer’s level: Employers can use virtual technology to supervise and monitor employees on a 24/7 basis, beyond the physical scope of the workplace. Similarly, virtual technology allows the employer to monitor the employee in real time and to search for preexisting information that is permanently available on the net. As a result, virtual technology has encouraged a shift from the monitoring of work to the monitoring of the worker: her performance, her behavior, and even her personal characteristics. Virtual technology facilitates the management of “supervision” and enables the employer to supervise an employee without the employee’s awareness, often at a relatively low cost.

Second, on the level of society: The internet platform, and in particular social media sites, have expanded the number of potential supervisors and the range of sites in which supervision is practiced. This has led to the emergence over recent years of a “surveillance culture,” adding another broad layer to the supervision of employees, who are now monitored not only by their employers or by the state, but also by many other entities in society. In other words, the ability to supervise the employee is no longer limited to the employer during working time. Rather, society has the potential, and often the desire, to supervise the individual’s private behavior and to conduct that supervision specifically in the context of the workplace, as in the case of Sacco.

Lastly, the employee’s level: The internet age has also changed the perception and behavior of the employee regarding her own private life. In an era characterized by the constant use of social media sites, people tend to “live in public” and share more and more aspects of their private life online, believing that this is exposed only to a concrete group of people. In practice, however, this information is exposed to more users than they expect, faster than they could imagine, and for longer periods than they would probably wish. As a result, the common perception of “what is private” has changed and can less easily be defined. Nevertheless, there is still a real need to protect private life, especially in the context of the workplace.

Due to the modification of the notion of privacy that the internet age has generated, the contemporary literature argues that we must now adopt more flexible and contextual notions of privacy. According to these contextual approaches, when a person reveals information, she should be understood to be doing so in a specific context, and to agreeing to reveal it solely within that context; the disclosure does not necessarily indicate her general agreement to reveal this information in other frameworks.

In the context of the workplace, however it is barely possible to distinguish between the employee’s private sphere of her professional sphere. Due to the nature of the internet platform, people present themselves to the world in both their professional and private identities, and conduct professional and private actions both in their home and their workplace. Virtual technology and the internet platform mean that an employer can easily penetrate the employee’s private sphere without the employee being aware of this or being able to prove in court that her privacy was violated. Lastly, the contextual notion of privacy is highly subjective and may be interpreted differently by individual judges, creating legal chaos and uncertainty.

Accordingly, in the last part of the article I seek to demonstrate that, on the practical level, it is almost impossible to rely on the notion of privacy, especially in its flexible variant. In order to ensure the protection of labor rights, and contrary to the trend in contemporary literature, I believe that we must also turn to applicable procedural rules of privacy. Among these rules, I argue that we should develop an anonymous job application process; set privacy rules for each and every workplace together with the employees’ and the employer’s representatives, in accordance with the specific workplace’s nature and needs; and impose a “cooling-off” period of one month before dismissal resulting from online shaming, in order to enable all the relevant sides to distance themselves a little from public pressure before making such a far-reaching decision.

In the internet age, the notion of privacy is elusive, and yet necessary. Turning to the notion of procedural protection of privacy can help us deal with the difficulties that the right to privacy generates and faces, and to assure the protection of labor rights.