Today's Offhand Post Could Be Tomorrow's Federal Case
Nov 17, 2010 5:00 AM PT
From the beginning of the social media revolution, it was obvious that the legal system was going to have trouble keeping up.
It started when file-sharing sites like Napster trampled on copyright laws on their way to completely changing the way music is sold.
Then, more than a few amateur bloggers -- a term some might consider redundant when discussing the early days of social media -- discovered that peppering the Web with innuendoes, half truths and outright lies about people they felt had wronged them was a good way to end up on the losing end of a libel suit.
As sites like Facebook and Twitter have caused an exponential increase in the number of people practicing social networking, you would think that awareness of the potential legal pitfalls would have risen accordingly, leading users to exercise a bit more restraint before launching their random angry thoughts into cyberspace. That doesn't appear to be the case.
In recent months, more than a few social networkers have unwittingly found themselves wrestling with legal issues ranging from libel and slander to free speech and employment rights. Many of these cases, not surprisingly, involve celebrity tweeters. Courtney Love, a singer and actress with a history of odd behavior, is a prime example.
Love apparently has shut down her Twitter account, but not before she was accused of using it to fire off disparaging remarks -- including allegations of drug dealing -- about a fashion designer she thought was overcharging her. The designer responded by slapping Love with a libel suit that's still working its way through the courts.
While it's easy for bad celebrity tweeters to attract headlines, average citizens also are finding that wayward social networking is an easy way to garner their 15 minutes of fame -- even if that is not their intent.
Take Amanda Bonnen, an Illinois woman who used Twitter to vent her frustration over what she deemed her landlord's indifference to her less-than-desirable living conditions. "Who said sleeping in a moldy apartment is bad for you?" Bonnen tweeted. "Horizon Realty thinks it's okay."
Those two sentences made Bonnen the subject of multiple news stories when her landlord, Horizon Management Group, decided it wasn't OK for her to share her thoughts with her Twitter followers. The company sued Bonnen for libel, seeking US$50,000 in damages.
When the case went to court early this year, Bonnen's attorneys used an argument that some Twitter users may find insulting. They told the court that Twitter, as a medium, typically carries a wide variety of speech -- from academic to silly -- that often can be classified as drivel, and when Bonnen's musing were viewed in that light they couldn't constitute libel.
Cook County Circuit Judge Diane Larsen promptly dismissed the suit. The judge's comments on the matter -- that Bonnen's tweets were vague and lacking in any real context -- indicated she agreed with the attorneys' argument.
A Complicated Case
While that case was easily resolved, things are likely to be much different for Dawnmarie Souza, who was fired from her job as an emergency medical technician after posting negative comments about her supervisor on her Facebook page. Souza worked for a Connecticut ambulance company called American Medical Response.
The chain of events that led to Souza's firing began when she was asked to prepare a written response to a customer's complaint about her performance on a call. The supervisor denied her request to have a union representative help her prepare the statement, Souza claimed, and that's when she started posting Facebook messages that, among other things, compared the supervisor to a psychiatric patient.
It wasn't long before company management heard about the posts, deemed them in violation of company policy, and terminated Souza's employment. That happened last December, but the case is far from closed. Just last week, the National Labor Relations Board filed a complaint on Souza's behalf claiming that American Medical Response broke the law by firing her.
The NLRB is a federal agency charged with enforcing the National Labor Relations Act, which gives workers the right to form unions and prohibits employers from taking action against employees -- even those who don't belong to a union -- from discussing working conditions.
Is Facebook Now the Office Water Cooler?
In its complaint against American Medical Response, the NLRB argued that Souza's Facebook posts constituted discussions about working conditions, particularly since several of her coworkers had read the posts and added comments supporting Souza's position.
When her coworkers joined the discussion, Souza's Facebook page became the equivalent of the office water cooler, the NLRB maintained, and employees are free to talk about working conditions in that setting, even if the conversation includes disparaging remarks about a supervisor.
The NLRB also found fault with the company policy American Medical Response accused Souza of violating. The policy apparently prohibits employees from even mentioning the company on any social media sites in which employees post pictures of themselves.
This policy is not legally enforceable because it's overly broad, according to the NLRB, and could have the effect of preventing employees from getting together to talk about the company, even on their own time.
The company naturally disagrees with the NLRB's position. It also contends that Souza was not fired solely for insulting her supervisor on Facebook.
Remember, This Is a Public Forum
"The employee was held accountable for negative personal attacks against a coworker posted publicly on Facebook," the company says in a written statement. "The company believes that the offensive statements made against the coworker were not concerted activity protected by federal law." The statement goes on to say that Souza was discharged "based on numerous, serious complaints about her behavior."
An administrative law judge is scheduled to begin hearing arguments in this case in late January, but it's likely -- given the numerous issues in dispute -- that the case ultimately will end up in federal court.
It's also likely that we'll see many more cases like this before people start to fully understand the risks associated with social networking. Even sites like Facebook, which gives users some control over who gets to see what, can whisk you from your private domain into a public forum if one of your invited guests should decide to share your posts with the outside world.
That's likely how the management of American Medical Response got wind of Souza's comments about her supervisor, drawing her into what has become a legal quagmire. And that's something any social networker who wants to avoid trouble should keep in mind.
TechNewsWorld columnist Sidney Hill has been writing about business and technology trends for more than two decades. In addition to his work as a freelance journalist, he operates an independent marketing communications consulting firm. You can connect with Hill through his website.