School District Sued by Student for Use of Facebook Photo

As part of a seminar presentation on the risks of social media, a Georgia school district used as an example a photo from a student's Facebook page showing the student in a bikini standing next to a cardboard cutout ad for "Blast," a malt liquor beverage, with the title "Once it's there, it's there to stay." The former student (she is now a Freshman in college) sued shortly after learning that her image had been used by the district.  She claims that she only thought friends and friends of friends could see the photo, and that she had not given permission to the school district to use her photo in the presentation.   She is asking for $2 million from the school district, arguing that the school district violated federal law, state law and the student's constitutional rights, and that she did not give up her rights by posting images on Facebook.

 

The school district may not have made the wisest decision in using a student's photo without her permission, but it remains to be seen how the district's conduct rises to the level of a constitutional violation.
 

You can read more about the case on WSBTV.com at: Administrator uses student’s bikini photo in Internet safety...

Juries and Social Media

Anyone who has watched Perry Mason, Law & Order, or Private Practice knows that jurors are not allowed to talk about the case with anyone (including family members) while the trial is going on, and particularly not during jury deliberations.  Yet, we have cases like the one in Arkansas where a defendant’s capital murder conviction was overturned on appeal because one of the jurors had been “tweeting” during the trial and jury deliberations.  The juror’s activities were discovered during the trial, and the trial judge admonished, but did not replace, the juror.  The defendant was subsequently convicted of robbing and shooting a teenager after a party.  The defendant’s lawyer appealed the conviction, arguing that the juror’s tweets violated the trial judge’s instruction not to post on online or otherwise communicate with anyone about the case.

 

The state supreme court overturned the conviction, stating that “Because of the very nature of Twitter as an online social media site, [the juror's] tweets about the trial were very much public discussions. Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.”  The appellate court pointed out that one of the juror’s followers was a reporter, and so media had advance notice that the jury had completed its deliberations before an official announcement was made to the court.

 

Courts are usually unwilling to overturn verdicts because of juror misconduct as it is often difficult to demonstrate that the misconduct had a prejudicial impact on the defendant.  In this case, the appellate court’s decision was based on the juror’s failure to follow the judge’s instructions rather than any prejudicial impact from the juror’s tweets.

 

Although courts have been reluctant to place widespread bans on jurors’ use of mobile phones and other electronic devices during trial, it is becoming routine to instruct a jury on social media as part of the judge's instructions to the jury.  For example, a recent jury instruction in a district court case included the following:

 

Court's 26: Outside Communications:

During your deliberations, you must not communicate with or provide information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

 

We are probably going to see more of these cases, which could ultimately lead to the adoption of stricter regulations, and even full scale bans, on the use of electronic devices in the courtroom.  Some courts already have enacted these type of bans.  For example, the circuit court in Cook County, Illinois prohibits people from bringing in cell phones and electronic devices to the criminal court building.  Interestingly, jurors are exempt from that ban, as are attorneys, police officers, government employees and others.      

Different Rules for Government Use of Social Media

I just returned from presenting two sessions on local governments and social media at the Arkansas Municipal League conference in Hot Springs. The first session was directed to municipal officers, and the second to municipal attorneys. I started both presentations with a summary of the benefits of government use of social media.  It's not hard to sell local governments on the benefits of social media. They recognize that social media is a cost-effective and efficient way to disseminate information and engage citizens in government business.  Municipalities, school districts, park districts, and other local governments are taking to social media like gangbusters - posting about local events on Facebook, tweeting about road closures, and uploading their meetings to YouTube. 

 

So, why do I feel like the bad guy after I present a session to local government officials and attorneys about social media?  

 

Probably because the bulk of my presentation (and all of the questions from the audience) deal with the legal and ethical issues with government use of social media.  Everybody enjoys hearing the "pros" about social media, but it's not as much fun to hear the "cons."  I happen to love potato chips, and wish I could eat them every day.  But, like everyone else, I have heard the "cons" about eating too much junk food.  Well, sometimes I feel like the "junk food police" for social media, telling government officials all the bad things that can happen if they eat too many potato chips (i.e., conduct themselves inappropriately on social media).   

 

Just like corporate and individual users, governments encounter many of the same legal and ethical issues when they engage in social media activities, including copyrights, individual privacy, employee usage and monitoring, among others. There are, however, a number of issues that are unique to governments, such as First Amendment protections, compliance with Open Meetings and Freedom of Information laws, and record retention requirements, just to name a few.  

 

An individual who doesn't like a particular comment on their Facebook page can simply delete it.  A municipality, on the other hand, must consider whether that comment is constitutionally protected speech before taking any action that could be considered censorship.   Members of a corporate board aren't concerned about triggering statutory "meeting" requirements when they participate in an online discussion, unlike their government board counterparts who could inadvertently trigger these requirements simply by posting comments to Facebook.  Governments must also ensure that their constituents have equal access to government information, including information provided electronically and digitally.  The rules are simply different for local governments engaging in social media communications, making it that much more important that municipal officials and employees understand what those rules are, so they can adjust their social media activities and conduct accordingly.

 

In a perfect world, a local government would carefully draft a social media policy to deal with employee monitoring and usage, administration of the sites, terms of use for commenters and other users before they establish a presence on a social media site.  That same local government would also conduct training session for municipal officers, department heads, and employees about appropriate use of social media before they "go live."  That doesn't always happen, of course.  It's not too late to get a policy on the books, and train your employees. 

Your Grandma (And Your Boss) May Be Looking, So Think Before Oversharing

I still remember my first time on social media.  My kids were tweens, and they were both on MySpace - remember MySpace?  As a parent, I thought I should at least take a look at what they were doing online - there were so many scary stories about online predators - so I filled out a profile and became the oldest person on MySpace.  Ok, maybe not the oldest, but certainly not part of MySpace's usual demographic.  I checked in a few times so I could see what the kids were up to, and when I was satisfied with their conduct, I stopped checking. 

 

Fast forward 10 years, and now my kids are in their early twenties.  They are still social networking, but have moved on to Facebook, Twitter, Instagram, and Vine.  And, so have I.  I no longer monitor their activities.  They are adults, after all.  They no longer need parental supervision.  They know how to conduct themselves on social media.  Right?

 

My kids are part of the generation I like to call the  "overshare" generation. This group broadcasts everything they do, like, want, and feel online.  Their audience is made up of their friends, family, and fellow students.  It is also made up of co-workers, bosses, and future bosses, but I'm not sure this generation always remembers that.  

 

Consider a few real-life examples of social media posts that recently made the news that make me scratch my head and wonder "what were they thinking?":

• A young woman posted that some days she wished she would be fired so she could just stay at home.  (She was fired the very next day - see, wishes really do come true).

• A 911 operator posted a copy of a computer screen containing information about a 911 caller's complaint about a medical emergency, along with the caller's name, address, and phone number, along with the caption "Can't make this up."  (His boss fired him for violating company policy, and a court upheld his dismissal).

• A police chief responded to a woman's post on Facebook about a woman's right to choose by calling the woman a "piece of sh*t scum sucking baby killing b***h," among other names. (He is facing disciplinary action).

• A few days ago, I posted a story about the fast food restaurant employee who posted a picture of himself in uniform licking the food served to customers.  (ick).

• A number of hospital workers posted pictures to Facebook of a dying patient who had arrived in the ER with multiple stab wounds.  (The hospital fired four of the employees, and disciplined three). 

All of these individuals were fired or disciplined for their online activities.  None of these activities were protected by the First Amendment (which protects restrictions on certain types of speech by government actions) or by labor laws (which protect labor-related concerted activities between co-workers).  No, these activities were simply "oversharing" in a very personal and/or inappropriate manner.  We see it every day, and not just in the news like all of these stories, but on our own social media sites.  We might shake our heads and wonder why someone would post that ("that" being something very private or embarassing or inappropriate).  

 

Getting back to my kids and their generation.  What I try to make them understand is that there is no privacy on the Internet, and that the Internet is forever.  Before they post anything on social media, they should ask themselves whether it would be ok if their co-workers, bosses, future bosses, parents, or even grandparents see it.   That's not a bad tip for all of us. 

Michigan Study Links Social Media & Narcissism

The University of Michigan just completed a study that links social media and narcissism.  In You're so vain: U-M study links social media and narcissism, the study found that college students who posted more on Twitter also scored higher in certain types of narcissism.  Among middle-aged adults, narcissists posted more frequent status updates on Facebook. The study did not clarify whether narcissism leads to increased use of social media or whether social media use promotes narcissism.

A Good Lesson for Lawyers Engaging in Social Media

From Professional Liability Matters comes a story about an attorney who narrowly escaped court-imposed sanctions after posting a picture on Facebook of the attorney smiling with his client with the following caption:  "Pic After Making a $43 Million Dollar Demand at Mediation."  When opposing counsel learned of the Facebook post, he filed a motion for sanctions against the attorney claiming that the photograph was a knowing and willful violation of state confidentiality provisions that prohibit the disclosure of mediation communications. The Judge dismissed the motion for sanctions, but nevertheless the attorney did subsequently remove the Facebook post according to an interview with Law360.com.   

Even though the attorney escaped sanctions, this is a good reminder for attorneys of their ethical obligations when using social media.  There are a number of ethical rules that come into play, including rules to protect attorney-client communications, prohibit the misrepresentation of material facts, and limitations on advertisement and solicitation, among many others. 

For more information about attorney ethics and social media, you can check out the following materials I prepared for an upcoming seminar for local government attorneys on the legal and ethical issues relating to social media.  We also devoted an entire chapter to attorney ethics in the book published by the ABA earlier this year, Social Media & Local Governments - Navigating the New Public Square. 

New Article on Cyberbullying

Social media has not only changed the way we communicate, but it has spawned an entire new vocabulary.  For example, "tweeting" is not just the sound birds make and "friends" don't always mean people you have personally met.   Cyberbullying is another example of a term that probably was not used just a short decade ago, but has been receiving a lot of media attention recently.

 

In a new article, Bullying on Facebook: How It Affects Secondary School and College Students, students at Tarleton State University investigate how cyberbullying via Facebook affects students transitioning from high school to college by looking at how bullying emerges from interpersonal communication on social networking websites.  The authors concluded that most students had either experienced or witnessed cyberbullying, and that cyberbullying does affect academic performance in some shape or form.

Retaining Government Records in the Era of Social Media

Governments (cities, counties, states) are increasingly using social media sites such as Facebook, Twitter, and YouTube, among others, to disseminate information and engage their constituents. Unlike private individuals and groups, however, governments have to comply with all sorts of regulations and policies that are intended to promote government transparency.

 

For example, every state has enacted laws that require government bodies to retain public records and release them upon request, subject to a variety of exemptions.  The Florida Attorney General’s Office considers information on government social networking sites as subject to record retention laws because they are created for “a public purpose and connection with the transaction of the official business of the city.”  Public bodies should be aware that their own state laws may require these records to be retained indefinitely or that permission must be sought prior to destroying the records. 

In addition to the legal issues, the preservation of online government records also presents practical challenges for which there are few standards. Governments have little or no control over the third party hosts of these sites.  Government officials are also understandably concerned about the time, staffing, and money required to retain past social networking interactions. 

 

Governments might consider following one of the following approaches (or a combination thereof) in complying with open record laws.

At minimum, government officials should retain periodic screenshots of their Facebook or Twitter pages, especially if they posted the comments.  The benefit of this option is that it is a cost-effective way to retain these records.  The drawbacks are that it places a considerable demand on staff time and physical resources, requiring government officials and their support staff to adhere to a regular schedule of printing out screen shots.  Also, at a time when most municipalities are trying to reduce their consumption and storage of paper, local governments are forced to once again create physical filing space for screen captures.

Another option is for governments to rely on social networking companies (i.e. Facebook) to archive the online communications.  This perhaps is the most cost-effective and efficient means of preserving a government’s social media interactions with the least amount of demand on staff time.  Unfortunately, a private company’s record retention policy may not comply with open record laws leaving governments open for potential violations.  Moreover, the government has little or no control over the third-party "host" as to what is being retained and for how long. 

A third alternative is for governments to use archival subscription services, such as Archive-It, which was launched in 2006 by the Internet Archives, a non-profit organization.  According to Archive-It, governments collect, catalog, and manage their collection of social networking sites with “content stored and hosted through the Internet Archives data centers.”  Four cities (San Francisco, Seattle, Raleigh, and Cary, North Carolina) digitally archive their Facebook or multiple Twitter feeds at least once a month.  By default, all Archive-It collections are publicly available and accessible, but subscribers have the option of making their entire collection or parts of their collection private within a specific IP address.  Archived pages display a highlighted bar at the top of the screen with a date and timestamp of when the page was archived, a warning to users that the information on screen may be out of date, and a link to all versions of the archived page.

If a government ends its Archive-It subscription, the collection remains as is, but local officials always have the option of adding or removing content from the public site.  Moreover, public bodies can request that copies of data be sent to them for an additional fee.  Through Archive-It, and other similar programs, governments can create and customize a record retention system that is in compliance with its state’s open record laws.  The drawback is that this service may be out of reach for rural or smaller communities where cost, training, and possibly updating the city’s technological infrastructure present potential roadblocks to implementation.

Employees Behaving Badly on Social Media

ABC News and other news media are reporting on a Taco Bell employee who posted a picture of himself, in uniform and at work, licking a stack of tacos.  Taco Bell Conducts Investigation After Licked Taco Shell Photo Posted to Facebook - ABC News. 

I am filing this post under "What's New" but it really should be labeled "What Not to Do." More reason why (1) employers need to adopt and enforce a social media policy and (2) employees need to think before they overshare. 

I hate to even repost the picture - tacos for lunch anyone?

 

 

 

 

 

 

 

 

 

 

 

Do LinkedIn Endorsements Violate Attorney Ethics Rules?

I have written about this subject before on my other blog, Municipal Minute, and it is addressed in the Social Media & Local Governments book, but I was glad to see that the American Bar Association is finally weighing in on the issue of whether an attorney may be inadvertently violating local ethics rules on LinkedIn.

 

For those of you who are on LinkedIn, you know that your connections can "endorse" you in certain skills and expertise areas.  For example, if you are a real estate attorney, you might focus your practice in acquisitions, finance, or leasing.  You may have added those three areas of practice to your "skills & expertise" profile.  Your connections can then endorse you in your "skills & expertise" areas. 

 

So, what's the problem?  Under ABA Model Rule 7.1, an attorney is prohibited from making any false or misleading claims about his or her services.  In certain states that have adopted modified ethics rules for attorneys, attorneys are prohibited from claiming any specialization or certification in a particular area of law except under very limited circumstances.  An attorney must be careful in using the skills & expertise function on LinkedIn, and in allowing endorsements, so as not to violate any applicable ethics rules that could be seen as misleading. 

 

You can read an article in the ABA Journal here. 

Copyright Myths Debunked by...Costco?

I love Costco - who doesn't, right?  Not only can I pick up 25 rolls of paper towels and all the blueberries I cannot possibly finish in a week while they are still fresh, but I can also learn about copyright law.  What, you say?  At Costco?  Yep.  Keep reading.

 

The April 2013 edition of The Costco Connection had a great article called "The Copyright Quandry - What are the Rules When Posting to Social Media?"  Even more interesting is the sidebar article by Lloyd J. Jassin (a copyright lawyer in New York), called "Copyright Myths."  You can read the article here. 

 

So, what can we learn from Costco about copyrights and social media?   

1. Myth - If I give credit I don't need permission.  Fact - Giving credit is not a substitute for getting permission to use someone's copyright material. 
2. Myth - The work I want to use does not include a copyright notice, so I don't need permission. Fact - Just because a work contains no copyright notice, that does not mean it isn't copyrighted.
3. Myth - I'm using the work for nonprofit purposes, so I'm exempt from copyright laws.  Fact - Non-profit users are not immune from copyright infringement lawsuits.
4. Myth - I don't need permission because I'm going to adapt the work.  Fact - Adapting the work for your own use without permission may still violate the owner's copyright.
5. Myth - The material I want to use was posted anonymously so it's in the public domain.  Fact - The Copyright Act protects anonymous and pseudonymous work. 
6. Myth - The work is in the public domain so I don't have to clear permissions.  Fact - Even if it is not copyright protected, it could still be protected by other legal theories including trade secret, contract law, or other legal protections.

Thanks, Costco.