You have the right to remain silent ... and tweetless

[26 August 2009]

By David Phelps

Star Tribune (Minneapolis) (MCT)

MINNEAPOLIS — Perhaps there should be a Miranda warning for social network users just as there is for suspected criminals.

“Any thing you say, tweet, blog or post can and will be used against you” in the court of public discourse — and that includes potential legal challenges.

“People tend to use Twitter and Facebook as if they were engaged in casual conversation and think they don’t create legal risk; they are wrong,” said William McGeveran, an associate professor at the University of Minnesota Law School who focuses on digital issues. “They don’t realize their statements are public, archived and searchable.”

In an interview, McGeveran cited a recent lawsuit in Chicago as the type of legal trouble that can follow indiscreet Internet postings. In that case, a landlord sued a tenant for defamation for tweeting that her apartment contained mold. The matter is pending.

“I imagine we’ll see more of that,” McGeveran said. “People have to use the Internet with appropriate precaution. They can’t let the chatty tone lull them into thinking (they’re) just talking to friends.”

In the world of social networking, privacy barriers can fall by the wayside. Friends of friends might see the postings of someone who is a stranger to them. Employers routinely turn to social Web sites to check on job candidates. It’s no surprise, then, that companies would want to know what’s being said about them before it’s too late.

Megan Ruwe, an employment attorney with Winthrop & Weinstine, said she had a corporate client who discovered the Internet ramblings of an employee who detailed his intense dislike for both his boss and the company.

Ruwe said she advised the client to approach the employee as if the comments had been made to co-workers in the company lunchroom.

People need to realize that they give up some of their privacy when they address matters on Facebook or in their tweets, she said.

“It’s like reality-show contestants who eventually forget that the cameras are rolling,” Ruwe said.

Nick Akerman, a civil and criminal litigator with Dorsey & Whitney, said he’s seen people who have had minor court offenses expunged on paper after years of good behavior but are still haunted by an “indiscretion of youth” years later because the incident remains traceable on the Internet.

“In the old days, that wouldn’t be there,” said Akerman, who thinks the Chicago landlord-tenant dispute bears watching for the precedent it might set.

A recent survey by Minneapolis business and legal consultants Russell Herder and Ethos Business Law found that very few companies have a policy governing social networking either as a corporate activity or by its employees. Yet, nearly half of 438 companies surveyed said they are concerned that social networking could harm their corporate reputation.

“Instead of taking steps to manage these risks, many are either blocking their employees from using it or are moving forward without a clear strategy in place. Both can be dangerous,” said Carol Russell, co-author of the study and chief executive of Russell Herder.

On the other hand, Akerman said, “Some companies are on Twitter 24 hours a day to make sure there’s nothing untrue 1/8about them3/8 out there.”

In terms of defamation, libel or slander standards are the same on the Internet as elsewhere in the public domain when the reputation of another has been harmed. Paul Hannah, a First Amendment attorney with Kelly & Berens, said damages could be “astronomical” because of the potential size of the audience that might see an offending reference in cyberspace.

“To put something (defaming) in a neighborhood shopper is one thing. To put it on the Internet is totally different,” he said. “If you slander someone, they can point to thousands of viewers who saw that.”

On the other hand, Hannah said, those who push the edge of the defamation envelope probably don’t have the resources to pay a judgment should they lose a case.

“The problem is (that) the loudmouths don’t have any money,” Hannah said. “Some of those people are scary.”

Published at: http://www.popmatters.com/pm/article/110510-you-have-the-right-to-remain-silent-...-and-tweetless/