Electronic Communications & Social Media

So what are our goals today? Discuss liability exposures generated by e-communications and social media Give you some strategies to manage these exposures Discuss some examples

The Privacy Illusion

“Private” posts and s are often not Anonymity is history Your private, personal life is on the internet already Return of the “small town” effect? If you want to keep it private, don’t post it

The Internet Never Forgets Your Facebook posts exist forever! –Often, even if you delete them Situations change, friends change, but your hotheaded from 2000 doesn’t What will you think about your tweet in 20 years?

& ESI

Electronically Stored Information (ESI) More & more is the centerpiece of litigation: It is saved (often forever!) and traceable Often used informally, and gives a false sense of privacy & ESI

Legal Discovery and Data Preservation Legal duty upon notification or reasonable suspicion of litigation –Preserve all related documents and records Including voice mail – electronic copies to Legal / Risk –Check with IT if unsure how to save –Don’t try to hide / delete / alter anything!

Lehman Brothers c.1850 – 2008 –Lawyers appointed to investigate Lehman successfully data mined over 34 million pages of documents to uncover wrongdoing –Here is a sample of the search terms used: – A Case Study

Write every with the understanding that others may read it Don't write anything that you wouldn't state verbally to the recipient in a business conversation Don't write s when you are angry or upset! & ESI – What to do?!?

Avoid using abbreviations and slang Don’t label behaviors –e.g. Harassment, Discrimination, Retaliation Skip attempts at humor…especially if serious subject Be clear and concise Avoid sending long s & ESI – What to do?!?

Employees writing improper s, esp. harassing or threatening? –Stop the problem quickly - inform mgmt / HR Never state anything you are not willing to defend on a witness stand! Beware of emotional context –Talk directly when problems arise & ESI – What to do?!?

Sensitive issue? Discuss over the phone, or even better…in person Stick to the facts: Avoid opinions or conclusions ESI is NOT erased when you hit “Delete”. It will likely stick around forever & ESI – What to do?!?

Using Social Media for Employee Recruitment Responsible for what you learn –Visual Observations: Age, Race, Disability –Hobbies and Interests: Indicate health, genetic info, religion, sexual orientation, etc. Can you prove it didn’t influence you? Is it worth the liability?

Friend your employees? “Friend your friends, not your employees”, good idea, but not in your SM policy There are things you don’t want to know Be aware of what you post if your employees or others at work will read it – remember your influence!

Monitoring Policies

May not protect you: –e.g. Client – Attorney, Facebook etc. –Stored Communications Act & Electronic Communications Privacy Act, Computer Fraud and Abuse Act, wiretapping laws, common law invasion of privacy theories, other

Monitoring Policies What you learn may trigger liability: –Failure to act on criminal activity –e.g. Doe vs. XYC Corporation - NJ Same issues with wrongful termination /discrimination claims Must define what is monitored and do so uniformly

Social Media Policies Social Media is a powerful tool that can be successfully leveraged Two stances: –Opportunity Based (do do) –Threat Based (don’t do)

Social Media Policy Examples Opportunity-based Threat-based:

Social Media Policies Beware of Labor Law issues: –Problem Areas: Overbroad (must provide examples) –Saving Clauses (not useful unless specific) –“Disparaging and defaming language” – not lawful – e.g. working conditions

Things move fast! JetBlue Flight 191 3/27/12 –Q: How long did Jet Blue have to react? –A: Not very long! –Multiple videos posted before landing –Passengers were watching their own drama unfold on CNN live

And they hit hard… “Innocence of Muslims” Video –Protests in 20 Countries –Death of US Ambassador - toll still mounting… YouTube - United Breaks Guitars –12 MILLION+ views, Millions of $ –One dissatisfied customer

Bonus Points! “ Sucks”