Sitton v. Print Direction, Inc.

• Decision Date: 28 September 2011
• Docket Number: No. A11A1055.,A11A1055.
• Parties: SITTON v. PRINT DIRECTION, INC. et al.
• Court: Georgia Court of Appeals

11 FCDR 3079

312 Ga.App. 365

718 S.E.2d 532

SITTON

v.PRINT DIRECTION, INC. et al.

No. A11A1055.

Court of Appeals of Georgia.

Sept. 28, 2011.

Stephen M. Katz, Marietta, Victor Severin Roberts, Atlanta, for appellant.

Fisher & Phillips, Burton F. Dodd, Atlanta, for appellees.

MIKELL, Judge.

Larry Sitton was fired from his job after his employer discovered, from e-mails on the computer Sitton used at work, that he was taking part in a competing business on the side. After his discharge, Sitton sued his former employer, Print Direction, Inc. (“PDI”), and its president and chief executive officer, William S. Stanton, Jr. (collectively “ appellees”), for invasion of privacy and for computer theft and trespass in violation of OCGA § 16–9–93.¹ Appellees counterclaimed on several grounds. Following a two-day bench trial, the trial court entered judgment against Sitton and awarded appellees $39,257.71 in damages. Sitton appeals, contending that the trial court erred in rejecting his claims under OCGA § 16–9–93 and for common law invasion of privacy; in the admission of evidence; in finding for appellees on their counterclaim for breach of duty of loyalty; and in the calculation of damages. We affirm the judgment.

“On appeal from the entry of judgment in a bench trial, the evidence must be viewed in the light most favorable to the trial court's findings of fact,” ² and we apply the following standard of review:

[F]actual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. OCGA § 9–11–52(a). The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.³

Properly viewed, the record reflects that PDI operated a commercial printing business and that Stanton was responsible for PDI's operations. PDI hired Sitton as an exclusive outside sales person in January 2005 and employed him as an at-will employee until he was discharged in September 2008. As an outside salesperson, Sitton sold PDI's printing services and was required to bill all sales through PDI's accounting department, in order for the commission to be shared between PDI and Sitton.

When he was first hired, Sitton received a copy of PDI's Employee Manual, which provided that “[e]mployees may not take an outside job ... with a customer or competitor of PDI.” Nonetheless, during his employment by PDI, and without informing PDI or Stanton, Sitton brokered more than $150,000 in print jobs through Superior Solutions Associates LLC (“SSA”), a print brokerage business which Sitton's wife started in October 2007 and of which Sitton served as manager. Sitton's work for SSA was in competition with PDI and continued through the date of his discharge from PDI. By brokering print jobs through SSA, Sitton was able to keep all the profit on the job rather than share the profit with his employer, PDI.

PDI provided Sitton with a laptop computer for use in connection with his work for PDI. However, Sitton chose to use his own computer, which he brought to his office at PDI, connected to PDI's system network, and used for PDI work. Sitton also used this computer for SSA work. When Stanton “caught wind” that Sitton was competing with PDI, he entered Sitton's office, moved the computer's mouse, clicked on the e-mail listing which appeared on the screen, and printed certain e-mails from Sitton relating to a job for Apex Printing Company. These e-mails, which were on a separate e-mail address from Sitton's PDI-issued e-mail address, confirmed that Sitton was using SSA to compete with PDI. Stanton subsequently terminated Sitton as an employee of PDI.

1. Sitton contends that the trial court erred in determining that Stanton's viewing and printing the incriminating e-mails found on Sitton's personal computer did not constitute computer theft, computer trespass, or computer invasion of privacy under OCGA § 16–9–93. The court found that Stanton's use of Sitton's computer was not “without authority” within the meaning of the statute. We find no error.

The criminal offenses of computer theft, computer trespass, and computer invasion of privacy are set forth in OCGA § 16–9–93, which also provides for civil liability and a civil remedy.⁴ Computer theft is committed by one “who uses a computer or computer network with knowledge that such use is without authority and with the intention of” taking, obtaining, or converting property of another.⁵ Similarly, a person commits computer trespass when he “uses a computer or computer network with knowledge that such use is without authority and with the intention of” deleting any computer program or data; obstructing or interfering with use of a computer program or data; or altering, damaging, or causing to malfunction a computer, computer network, or computer program.⁶ A person commits computer invasion of privacy when he uses a computer or computer network “with the intention of examining any employment, medical, salary, credit, or any other financial or personal data relating to any other person with knowledge that such examination is without authority.” ⁷

It can be seen that these three computer offenses include at least the following elements: that the proscribed actions be taken “with knowledge” that the use of the computer or the examination of the other person's data was “without authority” and that the actions be taken with the requisite intent.

We first note that the evidence fails to show that Stanton's use of Sitton's computer was “with the intention of” performing any of the acts forbidden by the statute. Stanton did not, nor did he intend to: take, obtain, or convert Sitton's property (computer theft); delete any computer program or data, obstruct or interfere with a computer program or data, or alter or damage a computer, computer network, or computer program (computer trespass); or examine Sitton's personal data (computer invasion of privacy). Thus, Stanton's actions do not fall within the scope of subsections (a), (b), or (c) of OCGA § 16–9–93.

Another element of these offenses—lack of authority—is also absent. ⁸ The term “without authority” is defined to include “the use of a computer or computer network in a manner that exceeds any right or permission granted by the owner of the computer or computer network.” ⁹ In the case at bar, Stanton found the incriminating e-mails on the computer Sitton used to conduct business for PDI. This computer was located in PDI's offices but was actually owned by Sitton. The trial court found that Stanton had authority to inspect this computer pursuant to the computer usage policy contained in PDI's Employee Manual, which Sitton had agreed to abide by when he started work with PDI.

Contrary to Sitton's contention, PDI's computer usage policy was not limited to PDI-owned equipment. The policy adverted to the necessity for the company “to be able to respond to proper requests resulting from legal proceedings that call for electronically-stored evidence” and provided that for this reason, its employees should not regard “electronic mail left on or transmitted over these systems” as “private or confidential.” The trial court, acting as finder of fact, found that Stanton looked at an e-mail on the screen of Sitton's computer at PDI. Whether the e-mail was stored there permanently or only temporarily, the e-mail was subject to review under the company's computer usage policy. Even if the e-mail was “stored” elsewhere, the company's policy also stated that “PDI will ... inspect the contents of computers, voice mail or electronic mail in the course of an investigation triggered by indications of unacceptable behavior.”

Sitton's reliance on Pure Power Boot Camp v. Warrior Fitness Boot Camp ¹⁰ is misplaced. In that case, a former employer hacked into its former employee's e-mail accounts without authorization.¹¹ In the case before us, the trial court did not find evidence of hacking. Instead, the court found that, when Stanton moved the mouse, the e-mail account appeared on the screen of Sitton's computer. Sitton challenges this finding, but because there is evidence to support it, we will not disturb it on appeal.¹² Because Stanton's actions were not taken “without authority,” the trial court did not err in denying Sitton's claim under OCGA § 16–9–93.

2. Sitton contends that the trial court erred in ruling for appellees on his claim for common law invasion of privacy based upon an “intrusion upon [his] seclusion or solitude, or into his private affairs.” ¹³ We disagree.

“The ‘unreasonable intrusion’ aspect of the [tort of] invasion of privacy involves a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person's private concerns.” ¹⁴ In order to show the tort of unreasonable intrusion, a plaintiff must show “a physical intrusion which is analogous to a trespass”; ¹⁵ however, “this ‘physical’ requirement can be met by showing that the defendant conducted surveillance on the plaintiff or otherwise monitored [plaintiff's] activities.” ¹⁶ In the case before us, no such surveillance took place.

Even if Stanton's review of Sitton's e-mails could be seen as “surveillance,” it still does not rise to the level of an unreasonable intrusion upon Sitton's seclusion or solitude, because Stanton's activity was “reasonable in light of the situation.” ¹⁷ Stanton acted in order to obtain evidence in connection with an investigation of improper employee behavior.¹⁸ In the case before us, as in Yarbray, “the company's interests were at stake.” ¹⁹ Stanton had every reason to suspect that Sitton was conducting a competing business on the side, as in fact he was. As our Supreme Court has noted, “[T]here are some shocks, inconveniences and annoyances which members of society in the nature of things must absorb...