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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Dwayne Campbell v. Woodard Photographic, Inc., et al.

2006 U.S. Dist. LEXIS 36680 (N.D. Ohio June 7, 2006)

Employer May Invade Privacy Of Employee By Inspecting Password-Protected eBay Account

Court denies defendant employer's motion for summary judgment, holding issues of fact preclude dismissal of plaintiff employee's invasion of privacy claim.  Plaintiff's claim arises out of the manner in which his employer obtained information about plaintiff's activities on eBay, which information supported employer's conclusion that the employee had stolen its property, which in turn led to the employee's termination.  Issues of fact existed as to whether defendant obtained this information by accessing plaintiff's password-protected eBay account, which, in the absence of an appropriate computer usage policy, could give rise to an invasion of privacy claim.  Notably, however, the Court held that if the employer had a computer usage policy that "advised its employees that their computer activities on the office system were monitored" plaintiff employee would lack a reasonable expectation of privacy in any eBay records he accessed from defendant's computer system and server.

Employer Conducts Investigation Of Work Misconduct   

Plaintiff Dwayne Campbell ("Campbell") was an employee of defendant Woodard Photographic, Inc. ("Woodard Photographic").  After a series of thefts at various office locations of cash and equipment, Woodard Photographic conducted an investigation.  Among other things, it obtained a statement from plaintiff Campbell concerning his activities on the day on which certain cash he had access to went missing.

Woodard Photographic subsequently engaged a private concern to assist in its investigation.  Paul Johnson ("Johnson"), an employee of this concern, claimed he discovered a computer printout of Campbell's recent eBay transactions in the printer tray of Campbell's office.  These transactions included "several items identical to equipment missing from [Woodard Photographic]."  Johnson also found evidence as to Campbell's movements on the day in question that contradicted his written statement.  As a result of these findings, amongst others, Woodard Photographic decided to terminate plaintiff's employment.

Accessing eBay Account May Give Rise To Invasion Of Privacy Claim 

Campbell commenced this action, asserting, inter alia, that defendants invaded his privacy by improperly accessing his password-protected eBay account.  The Court denied defendant Woodard Photographic's motion for summary judgment, holding issues of fact precluded dismissal of this claim.

Campbell denied that he printed-out a history of his eBay transactions in his office, and thus disputed defendant's claim that it discovered a listing of his recent eBay transactions in his office printer-tray.  Campbell claimed that defendant obtained this data instead by either improperly accessing his eBay account or searching his briefcase.

The Court held that either scenario would support a claim for invasion of privacy.  Said the Court:

[C]ampbell contends defendants either improperly accessed his eBay account or searched his briefcase to obtain the summary of his eBay transactions.Either possibility could be actionable.  While Woodard stated he obtained the eBay summary from a printer tray in plain view, Campbell contends he did not print the document at the office.  Should a jury believe Campbell over Woodard, it might reasonably conclude Woodard could only have gotten the document from Campbell's briefcase or by accessing the eBay account himself.  Because either could constitute invasion of privacy, summary judgment for WPI and Woodard is inappropriate.

Computer Usage Policy Eliminates Reasonable Expectation Of Privacy

Importantly, however, the Court went on to hold that if Woodard Photographic had a computer usage policy that advised employees that their office computer activities were subject to monitoring, Campbell would have no reasonable expectation of privacy in records he accessed through defendant's server.  Said the Court:

Campbell does not have an absolute expectation of privacy in records kept or accessed on his workplace computer, even if password protected.  Should WPI demonstrate it advised its employees that their computer activities on the office system were monitored, then Campbell had no reasonable expectation of privacy in records he accessed through WPI's server.  Consequently, even if Woodard had accessed Campbell's eBay account using a password he retrieved from monitoring internet activity at the office, Campbell's invasion of privacy claim would fail.

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