The First Amendment of the U.S. Constitution protects from judicial restraint discussions over matters of public concern, including claims of wide-scale data breaches of social security numbers and other personal information by a former employee on a blog, a New York State Supreme Court justice has ruled. Cambridge Who’s Who Publishing, Inc. v. Sethi, 009175/10, NYLJ 1201482619238, at *1 (Sup. Ct., Nassau Cty. Jan. 25, 2011). Finding no extraordinary circumstance that would overcome the Constitutional protection, the court denied a company’s request to enjoin its former employee from blogging about the company and its products, despite his agreement to maintain the confidentiality of confidential business information.

Relevant Background

Harsharan Sethi was the Director of Management Information Systems for marketing and networking company Cambridge Who’s Who Publishing. When Sethi started working at Cambridge in July 2008, he signed an “employee covenants and non-disclosure agreement.” The agreement prohibited Sethi from using the company’s confidential information, except to pursue Cambridge’s business. Confidential information included “client names, addresses, and credit card numbers.” Cambridge terminated Sethi’s employment in February 2010.

The Blog Post

After Sethi’s termination, Cambridge suspected he was the author of a post on, which stated that members might be entitled to a full refund of their membership fees, suggested that members file complaints with the District Attorney and Attorney General, and offered to provide information on management personnel, including “their backgrounds,” “their life styles,” and “their prior run ins with [the] IRS.”

Cambridge viewed the blog post on May 11, 2010, and moved for a preliminary injunction the very next day. It sought to restrain Sethi from: (1) attempting to access Cambridge’s database; (2) contacting Cambridge’s “members” or customers; (3) disclosing customers’ personal information; (4) making any statements about Cambridge that might interfere with its goodwill, including contacting its employees or vendors; and (5) maintaining any blog or website concerning Sethi’s former employment.

The court granted the company’s request for a preliminary injunction, in part, enjoining the solicitation of Cambridge’s customers or disclosing their names or personal information. The court, however, denied Cambridge’s request that Sethi be restrained from making any allegedly defamatory statements regarding the company.

Cambridge later renewed its injunction request, submitting to the court allegedly defamatory statements made by Sethi after the court’s initial ruling. It presented an e-mail from Sethi to the New York Attorney General in which Sethi stated that tapes containing the personal data (including names, addresses, social security numbers, payroll data, checking account and credit card information) of 400,000 Cambridge members were lost or stolen from the company.

The court then granted a temporary restraining order enjoining Sethi from contacting Cambridge’s employees about his former employment or making statements that interfere with Cambridge’s goodwill, including maintaining a website or blog, until the preliminary injunction hearing.

First Amendment Protection

At the hearing, though, Justice Stephen Bucaria finally denied the injunction, holding that the First Amendment of the U.S. Constitution encompasses “at the least the liberty [to] discuss publicly and truthfully all matter of public concern without previous restraint or fear of subsequent punishment.” Finding that the alleged loss of social security numbers and credit card information, among other data, “implicate[] the economic interests of a large number of people” and, therefore, were matters of public concern, the court held that Cambridge had failed to establish “extraordinary circumstances” justifying a prior restraint on speech and warranting the denial of the injunction restraining Sethi from communicating with Cambridge’s customers or law enforcement agencies concerning data loss.


Cambridge provides employers with several significant lessons.

  • First, it is instructive of the enforceability of a non-solicitation-of-customers provision that it enforced by injunction.
  • Second, absent compelling facts constituting “extraordinary circumstances,” courts generally are reluctant to enjoin or restrain speech that may be protected by the First Amendment.
  • Third, the decision raises two key points about data security:
    • Companies that experience an unauthorized access to or acquisition of personal information that they possess may be required to report the unauthorized access to affected individuals and certain state agencies. In New York, there are three state agencies that must be notified in cases of certain breaches of personal information: Office of Cyber Security, Attorney General’s Office, and Consumer Protection Board.
    • Likewise, companies must take appropriate steps when employees complain about or raise data-security issues. In at least two court decisions, one in New Jersey and the other in California, employees were permitted to proceed with claims of employment retaliation upon asserting they have suffered an adverse employment action after their complaints about data security at their companies.
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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.