Social Media Legal Issues: To Friend or Not to Friend

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1 Social Networking Social Media Legal Issues: To Friend or Not to Friend New town square. The law as developed is being applied to a totally new medium. Mark Hagemeier, Associate General Counsel University of Arkansas Medical Sciences The law is always behind the technology. No plausible deniability. Social Networking Technology in your pocket. Camera/video/recorder on phone. Instant messaging. FaceBook, Twitter, blogs. forms of electronic communication (as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content. Blogging (WordPress) Microblogging (Twitter) Social Networking (Facebook, Linkedin & Myspace) Wikis (Wikipedia) Multimedia (YouTube, Shutterfly) Virtual Worlds (Second Life) Chat rooms, listserves and bulletin boards

2 First Amendment & Cyberspeech First Amendment Issues Employment Considerations FOIA Intellectual Property Issues copyright and trademark Libel Obscenity & Pornography Cyber Bullying & Harassment Social Media in the Courtroom Most common communication among students and younger employees More pervasive than regular print media, but given the same protections The law is WAY behind the technology No plausible deniability Employment Considerations Do You Really Want to Know? Privacy Rights and Concerns (Fourth Amendment, FERPA, HIPAA) Your Applicant? Your Employee? Do You Really Want to Know? Employment Considerations Your Applicant? Your Employee? Privacy Rights and Concerns (Fourth Amendment, FERPA, HIPAA) Careful of the frame of mind when you post.

3 Employment Considerations Privacy Rights and Concerns (Fourth Amendment, FERPA, HIPAA) Careful of the frame of mind when you post. Post Responsibly Employment Considerations Privacy Rights and Concerns (Fourth Amendment, FERPA, HIPAA) Careful of the frame of mind when you post. Post Responsibly Assume posts will always be there and that it will eventually be public. Employee Discipline for Comments on Social Media Must Use Reliable Information Verify Talk to Employee Teachable moment on professionalism and collegiality.

4 Offsite Comments Criticism of Employer Provide a Safe Workplace Ensure a Harassment Free Workplace Investigate Allegations of Threats Can I Get Some Privacy Here!? Most Courts have held that you have little or no expectation of privacy in your work place computer. The express purpose of work place electronic mail resources is for business, including academic, clinical, and research pursuits. is typically considered your employer s property. Can I Get Some Privacy Here!? To the extent permitted by law, your employer reserves the right to access and disclose the contents of without the consent of the user. Electronic mail systems should be treated like a shared filing system, i.e., with the expectation that communications sent or received for your business or with the use of your employer s resources may be made available for review by any authorized employer official for purposes related to your employer s business. Courts have held that where there are clear, explicit and reasonable policies, there is no reasonable expectation of privacy in employee s and other documents and records created on employer issued technology.

5 Freedom of Information Act Arkansas FOIA is very broad but it has exceptions. FOIA s purpose to allow the governed to see what the governing are doing. Freedom of Information Act Be wary of what you open. Be wary of what you send/forward. Have a personal e mail deletion system. Soft Deletes Hard Deletes Server Back up Issues

6 Avoid using your office laptops, cell phones, smart phones or computers for personal use. If you do, remove personal and other non work related information from these devices. Only open or send , texts, photographs and other electronic information that you wouldn t mind reading on the front page of your newspaper. Libel Publication of a false statement of fact that harms another person s reputation Not libel if it is pure opinion Published when communicated to a third person Can sue for damages you caused lost job, business opportunity, etc. Since libel on the internet could reach millions of people damages could be quite large Under both state and federal law, it is a crime to publish, sell, distribute, display or possess certain kinds of obscene materials specifically child pornography. Task forces have been assembled to seek out offenders. If you are caught doing this, you will be reported. Obscenity depends on local standards, so what you believe may not be considered obscene in your community may get you arrested and convicted in another over the internet. It will probably get you fired. Copyright law generally Permission vs. Public Domain Fair Use Not facts & ideas Copyright laws on the Internet General Social Networking Best Practices Only use University logos, services and other trademarks on official University websites and pages. Communications on official University pages may be friendly and informal but should always be professional. Consider using social networking sites to distribute information only, rather than allowing postings on the page by non University individuals.

7 General Social Networking Best Practices Personal information (addresses, phone numbers, date of birth, whereabouts, daily activities) should not be included. No material may be posted that would infringe on the intellectual property or privacy rights of others. The Common Sense Approach Keep official course activities in official online tools and not on Facebook or other social media. Don t require students/employees to participate in Facebook or have participation influence a grade or employment evaluations. Don t friend students/employees unless they request the connection. Don t poke them either. Accept friend requests from all students or none at all. The Common Sense Approach Don t spy on students or employees. Avoid association with Facebook groups with explicit sexual content or views that might offend or compromise the student/teacher or employee/employer relationship. Take extreme care with privacy settings and faculty profile content to limit profiles to information relevant to educational purposes. Exercise appropriate discretion when using for personal communications.