Florida Ethics Committee Says Judges Shouldn't be Facebook Friends with Lawyers

Last month, a Judicial Ethics Advisory Committee in Florida issued an opinion stating that a judge may not be Facebook friends with (or list as contacts on other social networking sites) lawyers who may appear before the judge.

Really? Going so far as to say no friending lawyers who may appear before the judge?! I understand judges should avoid even the appearance of impropriety . . . but might this opinion go a little too far?

More on Employer Social Media Policies

The Delaware Employment Law Blog offers employers some good insight, outlining three initial steps on the road to creating an effective social media policy. In her December 4, 2009 post, Molly points out that it's important for employers to (1) familiarize the decision makers, (2) select key players, and (3) determine objectives.  (Check out her post for the broader discussion of these steps.)

I discussed related issues in October -- so if you're looking for more employer pre-drafting considerations (before drafting or updating social networking / social media / Web 2.0 policies), check out my October 27, 2009 post and my October 28, 2009 post.

Hijacked Online Accounts Pose Threat of ID Theft

A recent article discusses privacy issues and identity theft risks associated with social networking sites and social media -- including pending legislation aimed at strengthening data security and privacy measures to protect users' personal and financial information.  Check out the full story here:


Hijacked Facebook accounts pose threat of ID theft - Pittsburgh Tribune-Review

Merry Christmas!

New Facebook Privacy Policy May Catch Some Users by Surprise

Facebook updated its privacy policy last week, and the social networking site has come under fire for what many consider to be the site’s gradual deterioration of privacy protection.

Particularly troubling:  the popular social networking site touted the changes as giving users more control over their information. To the contrary, the changes actually seem to reduce the amount of control users have over the privacy of their information.

Certain privacy settings seem to have been lost altogether. Perhaps the most glaring example is that some information users used to be able to keep private is now considered “publicly available.” Under the old settings, a user could edit her “basic information” privacy settings to prevent disclosure of everything but her name and networks to which she belonged. This option no longer exists, and Facebook now says “your name, profile photo, list of friends and pages you are a fan of, gender, geographic region, and networks you belong to are considered publicly available to everyone.” In other words, you can’t “opt out” of sharing this information and no privacy settings let you prevent its disclosure. Anyone who looks at your profile will be able to see this info (and so can any application you or your friends use).

Users should also be aware, Facebook's "recommended settings" probably lead many users to share more information than they mean to.

It seems even Facebook CEO Mark Zuckerberg couldn’t figure out the new privacy settings, as many news sources are reporting that he’s tinkered with his settings more than once following implementation of the new policy. He even (seemingly inadvertently) let his whole profile -- pictures and all -- "go public" for a short time.  Whoops! 

Bottom line, Facebook seems to be pushing users to share more information than they want to or mean to. After all, indexing more information helps Facebook in the real-time search battle against sites like Twitter. The problem for Facebook:  as opposed to other sites with the more "show all, to all" default settings, most of Facebook's users joined its social network because of its more protective privacy options and default settings. 

The ACLU offers a detailed analysis of various aspects of the new policy, and interested Facebook users may want to check out that resource to ensure they're not sharing more than intended.  And this blog offers a helpful guide on how to restore some privacy to Facebook profiles.

Transfer of NY Judge May Have Been Due to His Facebook Activity

Thanks to Bill H. in New York for giving me a heads up on this story about a Staten Island criminal court judge who is being transferred to a court in Manhattan.  According to online speculation, it seems the judge's transfer may have something to do with his time on Facebook, both on and off the bench. 

No official comment from the Office of Court Administration spokesperson or from the judge on the reason for his transfer, but a number of news sources report that inside sources claim Judge Matthew A. Sciarrino Jr.'s use of the social networking site Facebook contributed to his transfer.  According to Staten Island Real-Time News (on silive.com), the judge had a public Facebook profile for a time (it's now set to "private"), which sometimes included details about his personal life, as well as his work location and schedule.  He reportedly updated his Facebook status constantly -- even from the bench on at least one occasion; he also posted a photo of his crowded courtroom on his profile page. 

As I discussed in an October post about a judge who was disciplined for "friending" a lawyer, judges and attorneys may need to be particularly cautious about their online activities.  (Lawyers would also be wise to stay on top of their clients' use of social media sites.)

Plaintiffs "Friend" A Juror On Facebook, Problems Ensue

Imagine our collective voices singing War's hit song:  "Why can't we be friends?  Why can't we be friends? . . ."

A recent case out of a federal court in Maine reminds us that sometimes being friends just might get us into trouble.  Say, for example, when parties to a lawsuit friend their jurors on Facebook.  (And as I've discussed before, it can also be problematic for a judge to Facebook friend a lawyer).

As you probably know, parties to litigation have a right to an unbiased jury. So, imagine what went through the mind of plaintiffs’ counsel when four days after the jury returned a defense verdict, that lawyer received this email from a juror:

[D]id you know your plaintiff[s] advocated the use of mushrooms and weed smoking, and binge drinking all over the internet? . . . It[’s] really sad what happened but with all the work going into this don[’t] you think you should have address[ed] this issue and known such things so they could clean up their acts before court? I’m just trying to help.[] [I]f you want more info and insight [I] will help you.

Yikes.

The attorney quickly brought this to the court’s attention, and in preparing for a conference with the parties’ counsel, the judge also found an anonymous post-verdict response to a questionnaire from a juror saying one of the plaintiffs “was a party drug [illegible] animal.” The handwriting apparently looked similar to that on the pre-jury selection survey form completed by the juror who sent the email.

Not surprisingly, the plaintiff wanted a new trial. Based on the information at this point, it seemed reasonable to assume the juror may have considered online information during trial that may have prejudiced a hypothetical average juror. Thus, the court investigated the potential juror misconduct.

The court’s order says that during post-trial voir dire, “[t]he juror explained that he had found information about two of the plaintiffs on the social networking site, Facebook. The juror that said he gained access to those plaintiffs’ Facebook pages by sending ‘friend’ requests, which the plaintiffs apparently accepted. On the two plaintiffs’ Facebook pages, the juror said that he found pictures that provoked the allegations in his e-mail.”

But the juror claimed he did all of his online research after the verdict had been entered.

As for the similar handwriting, the juror didn’t say whether the handwriting was his, and he couldn’t remember writing the statement.

While the court did find some of the juror’s answers “troubling,” the judge ultimately found “no basis for finding him untruthful in answering the one key question—when he discovered the information.” That is, post-verdict. Accordingly, the court denied plaintiff’s request for new trial.

Beyond the obvious “parties shouldn’t friend a juror on Facebook” lesson here, this case reminds trial lawyers the importance of understanding social media. It seems the juror in this case had a better grasp of the significance of Web 2.0 for evidentiary purposes than the lawyers did.

Facebook & Game Developer Face Class Action Law Suit

Social networking site, Facebook, and social media gaming developer, Zynga, (think YoVille, FarmVille, Mafia Wars, etc.) face a class action law suit over online "offer-based" advertising. The ads allegedly caused users to be billed for services they didn't mean to sign up for.

More here:  Facebook, Zynga Face Class Action Suit Over Offer-based Ads Digital Media Wire

Woman Fired for All-Caps Email Reminds Employers & Employees to Watch "Tone" of Online Communications

EMPLOYERS AND EMPLOYEES SHOULD BEWARE THE "TONE" OF THEIR TYPING.

Ahem . . . sorry, I didn't mean to shout at you.

Vicki Walker, who worked for New Zealand's ProCare Health, learned the hard way that "all caps" emails annoy people.  Walker sent emails to other employees with instructions on how to properly complete forms.  She used various formatting to make her point:  ALL-CAPPED TEXT, bold text, and colored text.  (Gosh, maybe she even used a COMBINATION?!).  Apparently, the instructions came across a little gruff.

ProCare fired Walker for these "confrontational" emails, saying she created "disharmony" in the workplace.

Walker sued for wrongful termination, and recovered $17,000 for the discharge.  (As another blogger points out, is it really possible to be confrontational in an email on how to fill out a form?!)

Employees should keep in mind "netiquette" when communicating by email, via social networking / social media, or with other online platforms.  As I've cautioned before, employers should also bear in mind how responding to employees' online activities might result in liability. And, people:  LET'S BE FRIENDLY WHEN WE TYPE!


*Particularly for those of you visiting my blog for the first time:  All all-caps, bold, and/or red and blue font used above was incorporated for illustrative (and admittedly, sometimes sarcastic) purposes only, and does not accurately reflect the author's true writing style or habits.  She generally doesn't make a habit of addressing her audience in all-caps.  UNLESS SHE'S REALLY EXCITED ABOUT SOMETHING.

Woman Says She Lost Disability Benefits Because of Facebook Pics

If your insurer ain’t havin’ fun, ain’t nobody havin’ fun.

A Canadian woman claims she lost disability benefits because her vacation pictures on Facebook made it look like she was having a good time.

Nathalie Blanchard, an IBM employee in Quebec, had been on long-term sick leave for major depression for about 18 months when she stopped receiving her monthly disability benefits from her employer’s insurance company. She claims the insurer told her that pictures she posted on Facebook (at a Chippendales show, at her birthday party, and enjoying a sunny beach on vacation) showed she wasn’t depressed and was able to work.

Blanchard counters that her doctor recommended she spend time with family and friends; she says she went out with friends and took a short trip with her mom on her psychiatrist’s advice.

The insurance company didn’t comment on this particular case, but issued a statement it “would not deny or terminate a valid claim solely based on information published on websites such as Facebook.”

According to an article in the USA Today, Blanchard is taking legal action to challenge the insurer's decision.

As this story illustrates, employers aren't the only ones using Web 2.0 to investigate workers.

Teacher Sues After Forced to Quit for Pics & "B-Word" on Facebook Profile

Beer, wine, and the “B-word.”

One Georgia teacher says that particular trifecta on her Facebook profile led to her forced resignation – and the resulting lawsuit she’s bringing against her former employer.

WSBTV out of Georgia reports that high school English teacher, Ashley Payne, claims the Barrow County (Georgia) school district forced her to resign because her Facebook profile included photos from her European vacation that showed beer mugs and glasses of wine. Shocking or inappropriate that an adult traveler who visited the Guinness Brewery might have a mug of beer? Or a glass of wine in Italy? Payne certainly didn’t think so. The “B-word” also appeared in one of her posts.

Payne said she didn’t look intoxicated, wasn’t doing anything provocative, and wasn’t acting inappropriate in any of the photos. In fact, she said the pictures didn’t even show her actually drinking the drinks (although, the news broadcast accompanying the station’s print story showed a photo of a woman holding a mug to her face). Payne restricts access to her Facebook page, and doesn’t “friend” students or strangers.

Payne claims the school principal called her into his office, and – citing the photos and expletive on her Facebook profile – advised her she should resign immediately to avoid suspension on her record. Payne said the principal claimed he’d already spoken with the superintendant, suggesting the decision was final.

In response, Payne filed suit against the school, saying the school violated state labor law because it failed to make her aware of her right to a hearing. 

Facebook Status Alibi

The New York Times reports that robbery charges against a teen in New York were dropped after he used his Facebook status update as an alibi.

Florida County Bans Employee Text Messaging

County staff in Alachua County, Florida may no longer use text messages to conduct government business. 

In an effort to prevent potential problems before the arise, the county manager banned employees from sending text messages dealing with county business -- whether on county-issued or personal cell phones.  The county is convinced text messages constitute public records; because the county's computer sytem cannot currently track and save text messages, the county manager apparently decided forbidding employees to send texts altogether would be the best way to comply to with the state's open records law.

Alachua County's decision to ban text messages seems to have been spurred by controvery surrounding another state agency just over a month ago.  In September, the Florida Public Service Commission (which regulates utilities in the state) disabled texting capabilities on its state-issued smartphones in September after Commission staff members were caught communicating via text messages with a Florida Power & Light lawyer in an alleged attempt to sidestep the state's open records law.

The Gainesville Sun reports more on the Alachua County story here.

Law Professor Sues Blog for $22 Million

An African American law professor has sued Above the Law, a popular legal blog that published a series of posts about Professor Donald Marvin Jones (who it dubbed "The Nutty Professor") following his 2007 arrest on suspicion of soliciting an undercover officer for sex.

The professor claims the blog's posts constituted racism, portrayed him in a false light, invaded his privacy, and infringed the school's copyright on his faculty photo. Jones seeks $22 million in damages.

More on the story here: Law professor sues legal blog for $22m in damages - Legalweek

'Spam King' ordered to pay Facebook $711 million in damages - San Jose Mercury News

A court awarded Facebook $711 million in damages in an anti-spam case last week. 

Story here:
'Spam King' ordered to pay Facebook $711 million in damages - San Jose Mercury News

Employer Social Networking Policies: Pre-Drafting Considerations, Part II

As noted yesterday, I plan to write a series of posts addressing social networking policies in the workplace. In yesterday's post, I discussed some things an employer may want to think about before drafting social networking policies -- including some things to keep in mind when starting with a sample policy.  I'll build upon that by offering a few considerations here for employers to ponder as they begin thinking about drafting, updating, or maintaining a social media policy.  This list is by no means exhaustive, but is meant to help employers focus on personalizing social networking policies (and hence, make them more effective).   

• Don’t be afraid to take care of some groundwork before involving an attorney, but focus these initial efforts on identifying the company’s business interests, needs, goals, and expectations as they relate to the policy. This will make your lawyer’s job much easier, and may save your company time and money.  For example, if you want to encourage social media use among your employees for marketing purposes, your policy will set the parameters within which your employees operate. The framework for such a policy will significantly differ from an employer whose primary goal in establishing a policy is something else (such as the protection of confidential information).
• Brainstorm how the policy should address both: (1) online activity which occurs on company time or using company resources (i.e., blogging at work, Facebooking on company laptops, etc.), and (2) online activity, regardless of when or where, which may have implications for your business (i.e., complaining about work on personal blog from personal computer after-hours that discloses trade secrets).
• Thoughtfully consider how far the restrictions should go. Keep in mind practical considerations. Not only do many studies suggest it’s not good for morale or recruiting to ban all social networking sites or Web 2.0, an all-out ban will be difficult to enforce. Take a realistic approach, and bear in mind ad-hoc policing could easily lead to selective enforcement issues down the road.
• How do you monitor employee technology use? Federal and state privacy laws should shape your policy.
• Consider quirks of your particular workplace technology that might present special considerations. For example: Do employees have company-issued web-enabled cell phones? Do you want policies addressing text messaging? Pagers? Off-duty conduct on company laptop during non-work hours?

Employer Social Networking Policies: Pre-Drafting Considerations & Dangers of Sample Policies

Employers often want to know more about permissible or effective social networking policies for their employees. Of course, there's no such thing as a “one size fits all” social media policy for employers, but I think readers might find it helpful if we took some time to address important considerations involved in drafting, updating, or maintaining a policy addressing employees’ online activities. With that goal in mind, I’m going to begin a series of entries specifically tackling some of those issues.

Pre-Drafting Considerations
These issues arise even before the policy drafting begins -- so that's where we'll start.  The planning stage of an employer’s social networking policy defines the later effectiveness of the policy. It may be wise for information technology personnel, human resources professionals, other internal company decisionmakers, and legal counsel to sit down together to determine the employer’s business interests, needs, goals, and expectations under the yet-to-be-drafted policy.

Sample Policies or Model Guidelines:  Don't Forget to Assess the Company's Unique Needs
It’s important to keep in mind that although model policies or sample guidelines may offer some helpful “nuggets,” those policies derive from unique business considerations – which may or may not align with the business interests of other companies. For example, many employers look to the IBM Social Computing Guidelines – one of the first publicly available social media policies. While I do think IBM’s policies are lovely, all the attention given to IBM’s guidelines (and model policies in general) easily distracts employers and discourages them from carefully analyzing their own unique objectives.

As a technology company, IBM has been motivated to actively encourage employee use of social networking. Other employers probably do not have the same motivations. More than 10 years ago, when most employers were trying to limit employees’ online activity, IBM was encouraging its employees to use, learn, and participate in online activity; the company continues to advocate its employees’ participation in Web 2.0. The overarching business interests of a technology company like IBM (i.e., promoting use of online media for marketing and business reasons) may conflict with the overarching business interests of other employers (i.e., perhaps a greater need to protect proprietary business information).

In sum, if human resources professionals at Acme, Inc. look to a sample policy for drafting guidance, they should always bear in mind that the fundamental principles underlying IBM’s (or anyone else’s) guidelines may not best serve the interests of Acme. At the risk of sounding very “lawyer,” I now point out the obvious: social networking policies, as with most employment policies, require individualized attention and should be specifically tailored to the needs of each employer.

Sample Policies or Model Guidelines:  Quality Control
The other problem with examples found online is quality control. Googling “social networking policies” may give an internet user a list of results, but it generally doesn’t disclose things like: who drafted the samples, the employer’s jurisdiction and applicable law, or the business interests driving the policy. In other words, the policy could have been drafted by an idiot, it might address too much or too little, and Company A may be focused on helping its sales team effectively use Facebook as a marketing tool while Company B just wants to keep its associates from divulging confidential financial information on MySpace.

Without properly assessing the business interests and concerns the employer wants or expects its social media policy to address, the resulting policy will be of little value to the employer. Before drafting any guidelines, employers should focus on the fundamental framework for and guiding principles behind their anticipated policies.

Coming Soon to a Blog Near You:  Practice Pointers
Stay tuned for some practice pointers on this subject, which I hope to post tomorrow.

Business Owner Says Social Media Helped Him Protect His Trademark

Check out this story about a business owner who largely credits social media for helping him protect his trademark. 

Vermont Brewer Slays Monster | The Big Money

Posted using ShareThis

Iowa TV Show Owner Sues Competitor for Comments Posted to Blog

The Quad-City Times reports that the owner of a Spanish-language television show sued the producer of a recently launched competitor program for comments posted on an online blog.

According to the Times’s story online, Alan Rivera, Teresa Cordova (Rivera’s wife), and Tarsicio Macias initially planned to produce and broadcast a show together. They had an oral partnership from March through June of this year, and then the partnership fell through.

Rivera reportedly posted comments about the failed venture on his blog under the heading “When Your Idea is Stolen.” The entry included the name and logo of Macias’s television program, and Rivera called Macias “unscrupulous” and a “leech,” and claimed Macias “stole” the idea, name, and logo for the TV show from Rivera and his wife.

Macias responded to the offending blog post by suing Rivera in state court for libel, unfair competition, and trade name dilution. According to Iowa Courts Online, Macias filed his suit in Scott County on September 28, 2009.

Judge Faces Public Reprimand After He “Friends” Attorney on Facebook & Googles Litigant

Earlier this year, the North Carolina Judicial Standards Commission publicly reprimanded a judge for violating the Code of Judicial Conduct after he “friended” an attorney involved in a custody hearing before the court and Googled one of the parties involved in the dispute.

It all started when Judge B. Carlton Terry, Jr. met with counsel in chambers, and the conversation briefly turned to Facebook when the husband’s attorney, Charles A. Schieck, mentioned the social networking web site. Later, Judge Terry friended Schieck, which allowed the two to view each other’s profiles.

It seems the ethics opinion may have been written by someone relatively unfamiliar with Facebook, as the opinion doesn’t explain the full context of the “communications” that ensued. If you’re Facebook savvy, skip the portion of this blog post between the asterisks below.

*******
Let’s review a few “Facebook basics.” I’ll describe this in first person to make it a little less awkward.
• “Friend”: Generally, I have to individually approve other users’ access to the content on my profile. (This can be more narrowly restricted on very individualized bases, but let’s stick with the general overview: a user generally must approve – or “friend” – others before they can see the user’s page). Once I’ve approved you (or you’re approved me, depending on the direction of the request), you’re officially my Facebook Friend. You see my profile and I see yours.

I have various means of communicating with my Friends. As to the potentially relevant methods for this case, consider:
• Status Updates: A status update is literally an update on my status (“Thank you, Captain Obvious,” right?). It’s a name, followed by a fill-in-the-blank. My status appears at the top of my profile, and all of my Friends can see it and/or comment on it. It’s essentially a way to communicate something to all of my Friends. Here’s an example via screenshot from Facebook:

• Wall Posts: I can post comments or pictures on any of my Friends’ walls, and my Friends can post on my wall. Our own status updates also appear on our own walls. Generally, anyone who can view my profile can view my wall, and vice versa. (Again, this can be changed – but I’m stating the general rule.) Unlike communicating with all of my Friends (i.e., Status Update), I can communicate more directly with one Friend, but it’s still published for all of his or her Friends to see. i.e., I can post something on Jill’s wall, and all of her Friends can see what I say, and Jill or any of her Friends might respond to it – but they’d be doing so on Jill’s profile page.

• Message: A Facebook Message is one of the more private forms of Facebook communication. It’s almost like an email, in that I can send a Message to one of my Friends and it goes to that Friend’s inbox. No one else sees the message.

• Facebook Chat: Also a private communication, but unlike email, this is like other “chat” platforms and allows for real-time communications.
*******

(We now return you to your regularly scheduled blog post . . . )
Schiek first made a comment on his own profile page about needing to “prove a negative” -- a comment he had also made earlier that day during the hearing. The opinion says the judge saw Schiek’s post, and “Judge Terry posted on his ‘Facebook’ account, he had ‘two good parents to choose from’ and ‘Terry feels that he will be back in court’ referring to the case not being settled.” Although the opinion seems to imply there was a relatively direct communication, this explanation suggests to me that the judge made these comments by updating his own status (rather than responding directly to Schiek). Scheick then posted, “I have a wise Judge.” Again, this might reasonably suggest to a more frequent Facebook user that Scheick made this statement by updating his own status (rather than directly replying to the judge). The opinion certainly never suggests the two communicated by Messaging each other, or by using the Chat feature.

The opinion goes on to note that during a break in the proceedings the next day, the judge told Conley about these Facebook “exchanges.” Use of the word “exchanges” intrigues me – as it suggests a relatively direct dialogue. While Schieck may have updated his status in apparent response to Judge Terry’s status updates (or vice versa), it wasn’t necessarily directed at the other and it wasn’t a private communication you might generally think of as the more typical ex parte communication.

Later that day, the judge updated his profile to say he was “in his last day of trial.” Schieck wrote, “I hope I’m in my last day of trial.” Judge Terry responded, “you are in your last day of trial.” This looks like more direct communication, but we’re still not sure whether Schieck posted his comment on the judge’s Wall in response to the judge’s status . . . or whether Schieck posted his comment on his own Wall, to which the judge responded directly to Schieck on Schieck’s Wall . . .

Regardless of the particulars of the so-called “communications” (details which I think should have been better fleshed out), the Commission didn’t like the online activity.

Following a motion by Conley (wife’s lawyer), the North Carolina Judicial Standards Commission publicly reprimanded Judge Terry for having ex parte communications on Facebook with Schieck during the pendency of the custody matter. This is particularly interesting, given that we're not really sure how direct the communications were.  Nevertheless, the back-and-forth (even if not direct) may easily have suggested some level of impropriety. The Commission also reprimanded the judge for independently gathering evidence by Googling one of the parties. On this issue, note that the 2007 ABA Model Code of Judicial Conduct contains a new provision under Rule 2.9(C) that prohibits a judge from investigating facts in a matter independently; the comment to the rule provides that the prohibition extends to a judge’s use of electronic research (such as a Google search).

The Commission’s opinion can be found here.

iPhone, Blackberry, Et Al., & the Law

The latest Web 2.0 trends aren't limited to computers! Web-enabled phones and PDAs have helped make today's interactive web even more ridiculously accessible. These developments offer legal practitioners new tools to do their jobs.

Lawyers, law students, paralegals, and other legal professionals with smart phones like the iPhone or Blackberry have at their disposal almost unlimited resources, such as the entire searchable/scrollable text of the Federal Rules of Civil Procedure, Appellate Procedure, the Constitution . . . criminal procedural rules, patent prosecution rules, Sarbanes-Oxley, and even state-specific evidence and civil procedure rules . . . a jurisdiction-specific "court days" calculator . . . West has even released its popular Black's Law Dictionary via app-form for the iPhone and iPod Touch.  And for you law students out there:  just last month, West introduced BARBRI Mobile for students enrolled in the BARBRI bar review course.  This month, the ABA Law Journal gives a helpful review of 70 "lawyer-friendly" apps for your PC, PDA, and smartphone.

I enjoy the news apps I have on my iPhone, which help keep me updated on legal issues in the headlines (as well as the ongoing Michael Jackson saga, details of the latest Cyclone football heartbreaker, and trashy celeb gossip on things like Lindsay Lohan's latest diet and John Gosselin's latest stupidity . . . ). I especially like AP Mobile, which is also available for iPod Touch, BlackBerry®, Palm® Pre™, Nokia Devices and Android Market.  I'm also a fan of the Thomson Reuters, Chicago Tribune, and The New York Times apps (if you're looking for that celeb gossip I mentioned, check out the TMZ app).  The recently released (free!) iPhone app from JD Supra, Legal Edge, offers streaming legal news organized by subject. 

Any law student, practitioner, or other legal professional out there with an Apple iPhone should check out iPhone J.D. -- a blog specifically designed for attorneys with iPhones. A New Orleans lawyer maintains the site, which is a fantastic resource with in-depth reviews on iPhone "law" apps and other commentary of interest to lawyers with iPhones.

All these great tools help attorneys do law in new, efficient, and innovative ways. Web 2.0 seems to be introducing us to Law 2.0!

Considerations for Employers Before Disciplining or Discharging Employees for Online Social Networking Activity

Today, I spoke at a seminar focused on "Employee Documentation and Discharge in Iowa and Nebraska," along with two shareholders in the Dickinson, Mackaman, Tyler, & Hagen employment law practice group, Ann Holden Kendell and Rebecca Boyd Dublinske. In addition to some general topics, I covered a segment focused on adverse employment action in response to employees’ use of social networking web sites. The attendees seemed interested in the topic, so I’ll post some tidbits from that presentation here.

(Note that in an earlier post, I discussed risks employers might face in accessing online profiles of potential employees during the recruiting process. Some of those risks also arise in the context of addressing the issue of online activity of current employees.)

We all know Web 2.0 has dramatically changed our understanding of communication, interaction, and technology. As social networking sites become more and more popular, employers realize more and more employees use these sites. Many employees comment about their work, their employer, or their co-workers online. Sometimes these comments can have serious repercussions for the employer. What an employee does online may:

• Hurt the employer’s reputation, or disparage the company or its officers;
• Disclose proprietary information (maybe even inadvertently);
• Result in vicarious liability for the employer (for example, supervisor harassment via Facebook); or
• Otherwise violate company policies.

The general rule in most U.S. jurisdictions is at-will employment – which allows private sector employers to discipline or fire at-will employees for any or no reason (such as violation of company policy based on online activity). Some exceptions to the doctrine exist, however, and might limit an employer’s ability to respond to employee activity online. Some things to consider before reacting to employees’ use of social networking websites:

• How employer accesses the information. Depending on the circumstances, how an employer accessed the offending information might result in liability for the employer, or perhaps undermine the investigation that led to adverse action in the first place. For example, I’ve mentioned that accessing an online profile or social networking group when the user has taken advantage of certain privacy settings might result in an invasion of privacy claim under either state or federal law.

• Employment or Union Agreements. In other words, make sure it’s really at-will employment. Employers should be sure discipline or termination wouldn’t be violating the terms of any agreements that are in place.

• Discrimination. Similar to concerns in the context of hiring, a social network profile often reveals an employee’s protected status(es). People document their religious beliefs, age, sexual orientation (protected in some states, including Iowa!), and on and on . . . Employers might access information they wouldn’t otherwise know about. And once they see it, there’s no undoing it. Discipline taken after the employer becomes aware of a protected status might support an employee’s later claim that improper considerations – rather than performance – influenced the decision to discipline. Employers should also consider whether a particular disciplinary action might suggest a selective enforcement issue.

• Retaliation. Could the content of an online profile be considered protected activity such that discipline would be against public policy, and hence, illegal? If an employee seems to be complaining about work or an employer, consider whether those complaints might be protected.

• National Labor Relations Act. The NLRA may protect online commentary if, for example, the content could be considered an effort to organize a union, or somehow related to a labor dispute. Employers should consider whether discipline might be considered an unfair labor practice.

• Off-Duty Conduct Statutes or “Lifestyle Discrimination” Statutes. Some states protect an employee’s lawful, off-duty activities. Employers with workers in those states could be pretty limited in how they may react to employees’ online activity.

• First Amendment. Public employers must consider First Amendment implications of disciplining employees based on online speech.

• Inaccurate Information. Although not really a legal consideration, employers should keep in mind that online profiles often contain inaccurate or misleading information. Sarcastic comments or inside jokes may easily be taken out of context or misunderstood. Employees may also have little control over some content in their profiles (i.e., someone else may post a comment on the employee’s Facebook “wall” or photos of the employee).

• Other Practical Implications. For example, consider the public relations issues arising as a result of a “Facebook firing.” Terminations resulting from online activity remain relatively newsworthy, and may garner attention a company would rather avoid by imposing less severe discipline.

This list isn’t all-inclusive, and new issues come up every day. Still, employers would be wise to check with legal counsel before disciplining or discharging an employee for the employee’s conduct online.

Iowa Man Sentenced to Prison After MySpace Pics Tipped Off Officers

A felon in possession . . . on MySpace.

A federal district court sentenced a Cedar Rapids, Iowa man on October 8, 2009, following a guilty plea to a federal gun charge. Gamaliet Figueroa was on probation for gun charges in 2007 when his probation officer discovered pictures on MySpace showing Figueroa holding a rifle and a handgun. When officers searched his home, they found a loaded semiautomatic rifle.

Update: Injunction Delivered by Twitter Successful, Says U.K. Lawyer

A U.K. lawyer has declared a court-ordered injunction delivered via Twitter a success.

In an October 5, 2009 post, I blogged about a U.K. court that allowed an injunction be served on an anonymous blogger by Twitter. Donal Blaney sought the injunction to stop an online impersonator.

Blaney now says the Twitter-served injunction stopped the impersonator -- but PCWorld reports that another imitator has sprung up amidst all the publicity surrounding the first. Blaney said he may have to file suit in the U.S. against Twitter to get the identity of the offending Tweeter.

Woman Arrested for Facebook "Poke"

And you probably assumed a poke would never lead to the pokey.

Apparently, a Tennessee woman assumed the same, when she gave an online "poke" to another woman . . . in violation of a protective order.  The online antics led to the arrest of the alleged "poker," Shannon D. Jackson, 36. 

The court order prohibited Jackson from "telephoning, contacting or otherwise communicating with the petitioner," The Tennessean reported.  Facebook's poke feature simply informs a user he or she's been "poked" by another user. 

Jackson's scheduled to appear in court later this month.

Risky (Recruitment) Business? Potential Risks for Employers in Using Social Network Profiles for Candidate Screening

Today, I’m presenting on Web 2.0, social networking, and legal implications in employment at Dickinson, Mackaman, Tyler, & Hagen’s 2009 Employment Law Client Seminar in West Des Moines. As a portion of my segment, I’ll be going over a number of risks employers face when they use social networking sites as part of their hiring or screening process. Potential risks include:

• Incorrect information or information taken out of context. Information in a person’s online profile or “wall” space on Facebook, for example, isn’t always accurate. Neither are assumptions about that information. Keep in mind users sometimes have no control over content others post to their site. Of course, sarcastic comments or inside jokes could easily be taken out of context and misunderstood.

• Reveals information about a candidates’ protected class. Social network profiles include all kinds of protected information: people often list religious beliefs, age, race, gender, sexual orientation (protected in Iowa!), military status, and so on in profile information, for example. It’s risky for employers to get access to this information they wouldn’t otherwise ask about during the hiring process – and information upon which they can’t base hiring decisions. Once an employer sees this stuff, they can’t “un-see” it! Employers may find themselves having to prove a decision to refuse a candidate wasn’t influenced by the information online.

• Invasion of privacy. Depending on the circumstances, checking online profiles could lead to an invasion of privacy claim under various federal or state laws.

• Off-duty conduct discrimination. Some states have laws prohibiting discrimination based on off-duty conduct. If an employer has employees in states with such laws, it could really limit the employer’s ability to use social networking sites as part of the screening process.

• Fair credit reporting laws. If employers use an outside agency to conduct background checks on candidates, they may need to follow consent and disclosure requirements of fair credit reporting laws. The federal Fair Credit Reporting Act is one such law, and states sometimes have similar statutes.

Of course, some might argue employers have a duty to check public profiles available through social networking sites that are freely accessible to minimize risks of later negligent hiring claims. Employers do have a duty to consider all reasonably available information in making hiring decisions, and failure to check online profiles could arguably support a future negligent hiring claim.

Employers should carefully weigh risks and benefits of incorporating social networking checks into its screening process. If employers plan to use social networks as part of their vetting of candidates, they should consider working with counsel in developing an internal policy to govern the process.

School Sues Student for Facebook "Suck Site"

The Chicago Tribune reported that Facebook “suck sites” will soon be tested in court.

Student Nicholas Blacconiere created a Facebook page mocking teachers and classes at Salon Professional Academy of Elgin. Now school administrators have sued Blacconiere in Illinois state court for unauthorized use of the school’s logo, and for emotional damage caused by defamatory comments on the page.  According to the newspaper, there are no known cases in which a school sought monetary damages from a student who mocked teachers online (although there have been cases of online harassment and cyber-bullying, as well as criminal cases involving cyber-stalking, threats, and hate speech).

The Tribune cited one expert who pointed out that some states have statutes under which parents can be held liable for their children’s intentional, harmful acts.  (One more reason parents should pay close attention to their kids’ online activities.)

Helen A.S. Popkin offers her take on the case in a cleverly written article on MSNBC.  As she points out: "While the medium of expression has changed over the years — from the cover of one’s Mead Trapper Keeper to Facebook and other Internet-loitering spots — proclaiming the suckitude of one’s school is an ancient rite of passage. It may even be necessary for growing personalities to assert such independence, according to some experts. The change of venue, however, has led to myriad lawsuits involving disgruntled students and the schools that punish them."

FTC to Require Bloggers to Disclose Payments or Freebies for Endorsements

The Federal Trade Commission published its final guidelines governing endorsements and testimonials on Monday, and under the revisions, the FTC will for the first time attempt to regulate blogging. 

Under the new guides, Bloggers must disclose any payments or in-kind donations (i.e., freebies) they receive in exchange for reviewing a product or service. 

These changes mark the first revisions to the guides since 1980, and they become effective December 1, 2009.

The text of the Federal Register notice can be found here, and you can read the FTC's news release here.

This source points out that the new guides will apply to social networking sites, such as Facebook fan pages.

UK Court OKs Service by Twitter a Year After Australian Court Allows Service by Facebook

A court in the U.K. allowed an injunction be served on an anonymous blogger via Twitter last Thursday. Courts usually lag technology, so this represents a pretty significant step by the legal system.

The injunction aims to stop an online impersonator of attorney Donal Blaney, a well-known right-wing blogger. Blaney wanted to serve the injunction by Twitter because he believed it would be the quickest way to get the site taken down.

The judge who allowed the "service by Twitter" was familiar with the site, as well as a ruling last year in Australia that approved service of a default judgment by Facebook.

As a solicitor told the BBC News, the rules allow electronic service -- if some documents may be sent by email, it seems natural they should be able to be served over social networks, too.

The ABA Journal reported on this here.

To read about last year's Australian court ruling that approved service via Facebook, click here. Service had previously been OK'ed by email and text message, but service by Facebook was reportedly the first service delivered by a social networking system.

Chicago Woman Sues Bullies Over Fake Facebook Profile of Her Son

On September 24, 2009, Laura Cook filed a suit on behalf of her son after four other students created a fake profile of the boy -- with his actual cell phone number, photos, and defamatory remarks. The defendants' posts suggested the boy liked to engage in homosexual acts, and they also sent "disturbing, vulgar and sexual comments to a few girls."

At one point, the fake profile had 580 "friends" -- many who knew the boy. Some of the users recognized the profile as a prank, but some believed it really belonged to Cook's son. This kind of humiliation, broadcast to 580 peers, would be pretty traumatic to any kid -- but because this student participates in athletics at state, regional, and national levels, the damage to his reputation is particularly significant.

Cook alleges five claims: defamation per se, defamation per quod, false light, intentional infliction of emotional distress, and injunctive relief.

The nature and extent of publication factors into the damages calculation in defamation actions. Suddenly "580 Facebook friends"-worth of damages probably doesn't seem too funny to these four little bullies anymore.

The story, as reported by the Chicago Sun-Times:
Mother sues over defamatory fake Facebook profile of son :: CHICAGO SUN-TIMES :: Metro & Tri-State

Shared via AddThis

Business Owner Slapped with $2 Million Libel Suit for Facebook and Twitter Posts

On October 2, 2009, a Knoxville, Tennessee news source reported that restaurant owner Travis Redmon faces a $2 million libel lawsuit because of comments he made on Facebook and Twitter.

The Low & Tritt marketing firm says Redmon defamed the company by saying things like, "Do not ever use Low & Tritt marketing firm!" He also called firm officials "crooks."

Greater circulation of defamatory statements means more damage to reputation. Publishing allegedly libelous statements to his 310 Twitter followers and 279 Facebook fans meant quick publication of the comments to a big crowd -- which increases any potential damages in this kind of case. Good lesson here: think before you post.

  Check out the story here.

Shared via AddThis

Employer Liability for Accessing Employee's MySpace Group, Part Deux

In yesterday's post on Pietrylo v. Hillstone Restaurant Group, I blogged about an employer that found itself in hot water for accessing an employee's "by invitation only" MySpace group (called the Spectator) by using another employee's login information.  The jury found the restaurant liable under the Stored Communications Act (also known as Title II of the Electronic Communications Privacy Act of 1986).  The plaintiffs in that case also pursued a common law invasion of privacy claim.  Although the plaintiffs lost on that count, there's an important jury finding worth pointing out.

On the invasion of privacy claim ("intrusion upon seclusion"), the jury instructions asked, "Was the Spectator a place of solitude and seclusion which was designed to protect the Plaintiffs' private affairs and concerns?"  To this, the jury responded, "yes."

The instructions went on to ask, "Did the Plaintiffs have a reasonable expectation of privacy in the Spectator?"  Here, the jury answered "no," which left the plaintiffs without a claim.  (The jury didn't go on to determine whether a reasonable person would find it highly offensive, the next element to prove the claim).

This seems a bit curious -- as the two answers appear to be mutually exclusive.  In other jurisdictions, an affirmative answer to the first question would necessarily mean the plaintiffs had a reasonable expectation of privacy in the "thing" intruded.  An invasion of privacy claim for intrusion upon seclusion in Iowa, for example, just has two elements:  (1) an intentional intrusion upon the solitude or seclusion of another, (2) which a reasonable person would find highly offensive. 

However this verdict form might be analyzed, one thing is clear:  a jury may well find that "by invitation only" MySpace groups --as well as other online content with certain privacy controls -- can be a "place of solitude and seclusion" for purposes of an invasion of privacy claim.

Here's the relevant portion of the jury form:

Employer Liability for Accessing Employee's MySpace Group

A jury decided an employer violated the Stored Communications Act (“SCA”) and the parallel state statute when management used an employee’s login information to access the site, awarding compensatory and punitive damages.

According to court documents, two Houston’s restaurant employees, Brian Pietrylo and Doreen Marino, created a private MySpace group called the “Spectator” to (in Brian’s words) “vent about any BS” they dealt with at work. One of the invitees was restaurant greeter, Karen St. Jean. Management apparently caught wind of the web page, and asked Karen for her login information. She voluntarily turned it over to them, and the managers logged on to find all kinds of stuff they weren’t too pleased about:

 Talk of workplace violence (i.e., “The Navajo rug needs to be set on fire”),
 References to illicit drug use (i.e., “If you had to drop acid with one person in Houston[’]s, who would it be?”),
 Offensive name-calling and sexual remarks (i.e., “management dick suckers” and reference to a “rim job,” which apparently involves some kind of anal sex act),
 Disclosure of proprietary business information (i.e., entire wine test on a new wine list that was to be given to the staff)
 Sarcastic and derogatory comments about the quality and standards of Houston’s, as well as its management (i.e., “stupid corporate f---s”).

Houston’s fired Brian and Doreen, and they sued. The jury returned a verdict in favor of Brian and Doreen on their SCA claims, finding that through its managers, Houston’s had knowingly or intentionally accessed the Spectator without authorization.

Following the jury verdict, Houston’s moved for judgment as a matter of law, or alternatively, a new trial. On September 25, 2009, the US District Court for the District of New Jersey issued its opinion denying the motion.

The court said that although Karen voluntarily handed over her login information to them, she testified she would not have turned over her password to any non-managers who asked for it, and she worried she “probably would have gotten in trouble” if she hadn’t complied. Thus, according to the court, a reasonable jury could have decided her purported “authorization” was coerced or pressured. Further, the managers accessed the site on multiple occasions, despite the fact is was clear on the group page that it was meant to be private and accessed only by members. Heck, the way they went about accessing the password-protected MySpace group also suggested they knew they weren’t authorized. Despite the restaurant’s claimed belief its managers pursued access to the Spectator for legitimate business reasons, the jury didn’t believe the way Houston’s tried to protect those interests was proper.

This case reminds employers there are risks in attempting to access employee’s online content – particularly when that access might be considered “unauthorized.” Employers generally should avoid using false information or someone else’s login and password to gain access to any web sites.