How Social Media and the Law are Connected

Mon, Nov 19, 2012

General Legal Issues

In part two of the SmithLaw Social Media Series, we are discussing some of the legal aspects of social media. Our first post was, “Are You Under Surveillance?” There, we established that social media is an easy way to keep track of someone’s actions, location, likes, dislikes, and more.

Law enforcement is able to use this information for legal purposes too, just as someone can use it for nefarious purposes. Anything you put out there on social media can potentially be used against you as evidence of a crime. Attorney Christopher D. Smith found two interesting articles on CNN and The Huffington Post about how much law enforcement is beginning to use social media to keep people under surveillance to glean evidence for cases.

In addition, do not forget that anyone involved in a civil case could also have their social media posts used against them. Posts that might be considered character defining could influence lawsuits, like personal injury cases. Divorces and child custody cases would also be prime examples of how social media posts could work against a client.

Another unfortunate situation is when employers see posts by their employees that they feel are damaging to the company’s reputation. Some companies are developing social media policies in an effort to prevent this type of potential damage. This can be helpful for employees who tweet for their company officially, because social media policies are important to help set parameters for posts. These policies can also help protect the company in case they need to bring disciplinary action for posts by the employee that they do not approve of.

However, trying to limit social media posting by employees in their free time and of their own accord is trickier. Some recent court cases have ended in the employee winning and some with the employer winning. It is hard to predict how the court will decide any particular issue since it is such a new area of the law and the variables are vast. Some variables include: private versus public sector, actual statements versus posting pictures or “liking” something, tweeting versus re-tweeting, etc. An interesting article about this situation is found here, in an article about a case of employees “liking” the page of their employer’s political rival. It discusses how different groups, including the ACLU, feel about the situation.

Employee and employer troubles do not end here, though. Another problem is when employees start posting inflammatory things about their boss or their specific work environment, something that goes a little further than just posting something that employer might not approve of. Are these types of communications protected under free speech laws? Well, maybe. Some discussions about wages or working environment can be protected under labor laws. However, not everything is, and a judge often has the ultimate discretion in the decision. Unions can protect some workers, as can specific company laws. The question is, how will all these laws combine to protect the worker or the company. It depends on each situation, but sometimes you just might not want to find out.

So, what is the bottom line? Social media can be dangerous when it goes too far. Try to think through your posts. Take a breath. Analyze them. Moreover, be aware that others might be reading and watching, no matter how private you think you have made what you are saying. No security setting is ironclad, and someone else could always share your posts.

Moreover, do not rely on the law being on your side and protecting your posts as free speech if you disparage your employer. This evolving part of the law changes rapidly. Be careful.

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