In today’s modern era almost everyone has some form of a social media account, whether it’s Facebook, Instagram, Pinterest, etc. While this form of technology has grown, so too has the law that encompasses it. Many social media users may be surprised of how their accounts can be legally used in an adverse action against them. This blog will look at how employers have been able to fire an employee over their social media, criminal investigations involving social media, and how companies have been sued over their social media.
Some social media users may be naive in believing that the freedom of speech or expression is an absolute right, which cannot be infringed upon. However, this is a misguided belief. In JT’s Porch Saloon & Eatery, Ltd., a bartender employee of the restaurant replied to a Facebook message that his step-sister had sent him, complaining about the customers stating they were “‘rednecks’ and that he hoped they choked on glass as they drove home drunk.” 2011 WL 2960964 (N.L.R.B.G.C.) at 1. When the employer had discovered the bartender’s comments he was fired, and the bartender brought suit alleging he was unlawfully discharged. Id. The National Labor Relations Board concluded that the employer did not unlawfully discharge the employee, because the employee bartender was not engaged in concerted activity when he made those comments. Id. at 2.
Several other courts have found employees rightfully discharged because of their Facebook or other social media comments and usage. See Ehling v. Monmouth-Ocean Hosp. Service Corp., 961 F.Supp.2d 659 (D.N.J. 2013); see Jaszczyszyn v. Advantage Health Physician Network, 504 Fed. Appx. 440, 2012 WL 5416616 (2012). But see Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013) (public employees’ political and symbolic speech on Facebook was protected).
Not only can an employer use an employee’s social media account, so too can prosecutors in a criminal investigation against the defendant. In Parker v. State, the defendant was involved in a physical altercation with another female, where the defendant was arrested for various criminal charges. 85 A.3d 682, 683 (Del. 2014). The defendant asserted a self-defense claim, the prosecution sought to use the defendant’s Facebook posts to discredit her self-defense argument. Id. Because the defendant had posted these on her page and was Facebook friends with the victim, the prosecution was able to authenticate and admit the Facebook posts into evidence against the defendant. Id. at 684. See Pavlovich v. State, 6 N.E.3d 969 (Ind. App. 2014).
Companies can also be held liable for their social media usage. In Fair Housing Council of San Fernando Valley v. Roomates.com, LLC the defendant company’s website aimed at matching people with locations to live. 521 F.3d 1157, 1161 (9th Cir. 2008). The defendant website required users to create a profile before they could use its services; the profile required the subscriber to disclose their sex, sexual orientation, and whether they would bring a child to the household. Id. Suit was brought against the defendant company alleging it had violated the Fair Housing Act. Id. at 1162. The Ninth Circuit held that the defendant website’s actions did not qualify for immunity under 47 U.S.C. § 230, which in limited circumstances grants immunity to “internet computer service” providers. Id. at 1175; 47 U.S.C. § 230(c)(1)-(2). Contra, Chicago Lawyers’ Committee for Civil Rights under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008); Finkel v. Facebook, 2009 WL 3240365 (N.Y. Sup. 2009).
As social media expands into our daily culture, it is necessary to know how to properly utilize it. Therefore, having a working knowledge on how to properly interact on and with social media can not only help protect an individual’s interests, but also a company from potential liability.
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