What Legal Questions Do I Need to Ask
Before I Start to Tweet?
Social media sites like Facebook, MySpace, Twitter, YouTube, and blogs are new tools for you and your local union to communicate, for better or worse, with the outside world. Before you begin, however, you may want to ask a few legal questions.
The legal concerns associated with online media are not very different from the concerns that arise when using print media. But, unlike a newsletter, Twitter and Facebook allow us to communicate instantaneously to almost everyone with an internet connection, anywhere in the world. It may feel like casual conversation, but such communication has the permanence of books.
Now, you wouldn’t give a speech or write a newsletter article without a little reflection and preparation. The same is true for social media: at the very least, you should consider what you want to say and whether it is wise to broadcast that message to the entire online community. You might also want to consider these common sense guidelines for internet communication:
1. Have a strategy before you start. The model policy in the Social Fish white paper on social media is a good place to start, and it’s an easy read. Check it out at www.socialfish.org/whitepaper.
2. Set rules about what you are going to put online and who has access to the organization’s social media sites. Make sure everyone knows and supports these rules.
3. When you communicate on the internet, do so openly under your own name or that of your organization. Avoid anonymous communications and don’t say anything that you would not say if you had to put your name behind it.
4. Remember: everything you say online is potentially on record forever! If that information is libelous or defamatory, posts and blogs will probably be allowed in court as evidence.
5. Don’t tell secrets online -- ever! Determine what is confidential and keep it that way.
You should know that the use of social media will almost certainly constitute speech and publication for legal purposes. When you tweet or update your Facebook page, you reproduce and distribute your communication – which means that you effectively “publish” your speech.
Proof of publication is a requirement in most legal suits alleging defamation, injurious falsehood, and product disparagement. Once you push the “share” button, comments that are false or cause harm will cause you trouble. Even the unintentional or negligent release of misinformation could make you or your organization liable for damages.
Keep in mind that while truth is a defense to defamation, the veracity of your communications may well be decided in court, at great expense to your organization. The best defense: avoid publishing information that is potentially injurious or libelous.
What about trademarks? In general, it is best if you do not use anyone’s trademark on your website or in social media communications. Sometimes a company is primarily known by its symbol but, even in those cases, you are wise to simply name the company without using the trademark.
Copyright problems are easily avoided by using only small portions of someone else’s written or published materials and citing those with proper attribution. If longer quotations are necessary, link directly to the source; do not paste large chunks of material right onto your website or social media platform.[1]
Avoiding accusations of harassment. Harassment has been a huge issue on social media sites. To be liable for harassment, an organization would probably have to have “actual or constructive notice,” meaning that it knew or should have known of the communications in question. Blakey v. Continental Airlines, Inc, 751 A.2d 538 (N.J. 2000). Although this is a New Jersey case, the court relies on restatement of traditional rules that have been applied by almost all state and federal courts, so we can reasonably presume that other courts will apply the same or similar standards. Having a “no harassment” policy that applies to internet communication, and then monitoring those sites and social media platforms, provides some protection for you and your organization.
Can I disciplined for what I say online? It is generally accepted that you should not be disciplined for communication for which you have “a reasonable expectation of privacy.”[2] So, when do you have that expectation of privacy? In the case of online communications, that answer is never. The best policy is to presume that everyone will have access to anything you say online.
Does your employer have the right to monitor your social media speech? As a practical matter she does if it is open to everyone, as on a Facebook organization page. What if it is password protected? The 9th Circuit Court of Appeals in California determined that an employer who had gained access to a password protected bulletin board by borrowing a password from an employee had violated the law. Interestingly, the company lost because the employee who gave them the password had never actually used the site himself and was therefore not a “user” who could authorize the company to view the site. Had that employee been a regular user, that result might have been different. Konop v. Hawaiian Airlines, Inc. 302 F.3d 868 (9th Cir. 2002), cert. denied 537 U.S. 1193 (2003).
If you do find yourself being questioned about your online communication, you may have some protection under labor law. Employers should not retaliate against an employee for communication made as part of, or in furtherance of, concerted activity. Grievance handling, bargaining, defending workers in your role as union leader, and addressing concerns about hours, wages and working conditions generally fall into the category of concerted activity. Disciplining a represented worker, or one seeking representation, for communication concerning a concerted activity is an unfair labor practice under the National Labor Relations Act. Traditional rules of just cause may also be applicable.
In summary: treat online communications with the same degree of care as print communication. Have a good policy, think before you post, and remember that online communication is far-reaching and permanent. Common sense will go a long way towards protecting you and your union from unnecessary legal problems and complaints.
--Marc Cryer
[1] The Digital Millennium Copyright Act (DMCA) gives you the right of “fair use” of copyrighted materials and allows short quotations without paying a fee as long as you accurately cite the original. If fair use is going to be a large part of your communications strategy, refer to Stanford University’s Copyright and Fair Use Center before you start pasting.
[2]Electronic Communication Privacy Act of 1986. The ECPA includes the Stored Communications Act, which contains this wording.