Trouble with “ Twibel ” and Other Social Media Legal Issues

1. Trouble with “Twibel” and Other Social Media Legal Issues Jeffrey C. Sun Associate Professor, University of North Dakota Visiting Scholar, The Ohio State University

2. Messaging

3. Messaging

4. Social Media by the Numbers 1.1 billion users 232 million users 259 million users 150 million users 70 million users

5. Today’s students are more likely to use: Instagram Text messaging Snap chat Twitter #collegefessions Vine College Students and Social Media

6. Emerging Social Media Tinder OnLulu

7. Communication Boundaries • online privacy, • virtual reputations, and • digital amplification

8. http://www.whsv.com/news/headlines/Websites-Host-Controversial-Student-Dialogue--231823111.htmlhttp://www.whsv.com/news/headlines/Websites-Host-Controversial-Student-Dialogue--231823111.html

9. LEGAL RED FLAGS Social Media & Free Speech “True” Threat Disruption Harassment, Stalking Hate Defamation Invasion of Privacy Violations of Professional Codes in Academic Setting

10. Case #1: Discussion • What do you say to … • the brother of one resident, • the resident who spoke to the RA, and • the parent who called UCC? • What do you do? • What do you communicate to Marco and how? Do you take any actions? What are your justifications? • What services might you recommend or how might you reach out to this student?

11. True Threat Considerations • Reaction- the reaction of those who heard the alleged threat; • Conditional- whether the threat was conditional; • Direct Communication- whether the person who made the alleged threat communicated it directly to the object of the threat; • Frequency- whether the speaker had a history of making threats against the person purportedly threatened; and • Propensity for Violence- whether the recipient had a reason to believe that the speaker had a propensity to engage in violence

12. Case #1: Discussion (cont’d) • How might your responses change if … • the posting was pursuant to a course blogging activity? Does it matter if the course is a creative writing course? • several females in the residence hall, who were aware of these postings, reported Marco leering and moving his tongue with a snake like movement when he was alone with them in the staircase? The reports came in within the past 3 weeks.

13. Case #2: Discussion • You are the academic program director for the nursing clinical program. What do you do? • The program director consults the Dean of Students. What do you say as Dean of Students?

14. Case #3: Discussion • The program director consults the Dean of Students. He is particularly concerned that the University Police is not taking any action. As Dean of Students, what do you consider before responding, what do you ask, and how might you proceed?

15. American Nursing Association & National Council of State Boards of Nursing Liaison Committee on Medical Education Professional Conduct Education Source: https://www.ncsbn.org/2930.htm

16. Case #4: Discussion • Should Evan have “friended” Marci? What are reasons that support his decision? What are reasons that do not support his decision? • Students often gripe about college policies and procedures. At what point, if at all, should Evan have responded or communicated something to Marci? What should he have done and why? • Should Marci be held to a higher standard since she is a student leader? • What would you advise Evan if Marci and her friends criticized the competency of Evan’s co-workers or supervisor (as opposed to just discontent about decisions made)?

17. Case #4: Discussion (cont’d) • How might your response above be different if the events took place at a public college? • Would any of your responses be different if Marci removed the postings (e.g., cleared her wall as a matter of practice every week)? • How would your responses change if Marci created a specific website for OLC students to gripe (e.g.,www.TheDarkSideofOLC.com)? • Marci’s communications presented cyber-gripes about administrative decisions. What if her gripes were about information regarding a cheating scandal on-campus? That is, she posted references about students cheating (or allegations of students’ cheating) by getting a copy of the publisher test bank for a class. If you were Evan, what might you do?

18. Disruption On-Campus?

19. What does the Code of Student Conduct say? The university student code of conduct prohibited “extreme, outrageous or persistent acts, or communications that are intended or reasonably likely to harass, intimidate, harm, or humiliate another.”  Not Overbroad Not Vague Sexual Misconduct by an Avatar: http://www.insidehighered.com/views/2010/02/25/bugeja Consider OCR 2011 DCL, Montana Agreement, and SUNY Agreement; see also ELA/NASPA Guidance, http://www.naspa.org/rpi/reports/legal-links-volume-1-issue-1 Harassment Through Cyber Revenge

20. State Laws such as California’s Leonard Law see, e.g., Yu v. University of La Verne Qualified Immunity see, e.g., Zimmerman v. Bd. of Trs. Of Ball State Univ. Open Records Privacy State Law Restrictions - Ark. Code Ann. § 6-60-104 (2014); Cal. Educ. Code § 99121 (2014); Ill. Comp Stat. § 75/10 (2014); N.M. Stat. Ann. § 21-1-46 (2013). Stored Communications Act see, e.g., Rodriguez v. Widener Univ. Other Considerations

21. (oftentimes) Beyond the University • Defamation: a false and unprivileged statement of fact that is defamatory about a target person and published with fault (e.g., defamation per se – STD or incompetence) • Can republish - retweet • Invasion of Privacy: (false light) A person who gives publicity to a matter concerning another that places the person in a false light, is subject to liability for invasion of privacy if the false light causes the other person to be viewed in a way that would be highly offensive to a reasonable person and the speaker acted with reckless disregard of the falsity of the publicized matter. 

22. Access to Social Media Accounts

23. Special Provisions • Presence of Social Media (New Jersey) • Access • Observation • Shoulder Surfing (e.g., California, Delaware, Michigan, New Mexico) • Link/Friend (e.g., Arkansas, Delaware, Michigan, Wisconsin) • Monitor (e.g., Delaware, Michigan – but okay in Utah) • Change Privacy Settings (e.g., Arkansas) • Waiver of Rights (New Jersey) • Any Social Media Information (California)

24. Special Provisions (cont’d) • Indirect Access • Not Okay – Delaware • Okay – Arkansas, Michigan, New Mexico, Utah, Wisconsin) • Exceptions (Delaware, Illinois, Oregon) • No Duty to Monitor (Michigan, Utah, Wisconsin) • No Liability if viewed (Oregon, Utah, Wisconsin) • Damages • Injunction (Michigan, New Jersey), Damages (with caps – Michigan, Utah, Wisconsin), Attorney’s Fees (Michigan, New Jersey), Court Costs, and Criminal (Michigan)

25. What’s Next? Social Media

26. Adopt or Not Adopt Formal Internet Usage Policies? • Revisit existing internet usage policies. • Focus on “unacceptable online behaviors” or improving ethical “digital citizenship” among student users. • Do not tailor internet usage policies to specific technologies as they will change quickly.

27. Develop Specific Policies Covering the Boundaries of Student Online Interaction with Faculty and Staff • Policies and culture of “friending” • How informed are faculty, staff, and students about their activities to friend each other as well as alumni, legislators, and college constituents? • Working with “cyber griping” • An online “gripe site” is a type of website devoted exclusively to the critique and/or mockery of a person, place, corporation or institution. • What can we do to manage the situation and why? • What have we learned from the cyber griping experience?

28. Summary

29. Q&A NASPA Legal Links www.highereducationlaw.org July 2014 Professor of Higher Education University of Louisville