Social Media: Battling the Modern Day Medusa. North Carolina School Superintendents Association Superintendent’s Summer Leadership Retreat Grove Park Inn, Asheville NC June 23, 2014 Christopher Z. Campbell Campbell Shatley, PLLC c [email protected]
Libel (written defamation) + Twitter (i.e. any social posting) = Twibel
A written statement that is false and tends to malign the Plaintiff in his or her profession or business or disparage the Plaintiff’s integrity in his or her profession or business.
The cause of action belongs to individuals and corporations. However, could a Board of Education ever be a successful plaintiff in a lawsuit for defamation?
Elements for Libel against a public official or limited public figure =
“[T]he ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Cline v. Brown,24 N.C.App. 209, 214, 210 S.E.2d 446, 449 (1974), cert. denied286 N.C. 412, 211 S.E.2d 793 (1975) (quotingRosenblatt v. Baer,383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966)).
This means YOU!Who is a “Public Official or Public Figure” in Twibel Cases
P.S. Public figure includes individuals who have achieved total notoriety in a public context or voluntarily assert themselves into a central role in a particular public controversy (i.e. “limited public figure”).Who is a “Public Official or Public Figure” in Twibel Cases
Social media sites that allow postings without materially editing the content of those postings cannot be sued for defa-mation. Thus, social media sites have the protections of common law “distributors” of information as opposed to “publishers” of information. This means that social media sites do NOT have to remove defamatory content even after notification.Bottom-line: The Snakes in Medusa’s Head are NOT to blame (at least not in court)
You don’t have a mirrored shield and you can’t cut off the head of Medusa.
Although the School Board may hire an attorney to initially advise it and you, the School Board is under no legal or policy obligation to pay for a lawsuit on your behalf. The general rule is that employees must file their own lawsuits since public money is involved.
If a response is needed, make it targeted to the audience you care about.
FERPA does permit the nonconsensual disclosure of information from education records in certain limited circumstances.
Moreover, verification or confirmation of facts contained in or which constitute education records without prior written consent violates FERPA because it requires disclosure of personally identifiable information from an education record, or at the least, a reliance on information contained in education records.
Accordingly, in a situation where the District receives a request from the media and wishes to respond, the District should indicate that FERPA restricts the disclosure of information from education records, and that in order to discuss any details from such records, the parents will have to provide their prior written consent.
Duck and Pivot: “In accordance with federal law we cannot discuss specific student matters. However, we take student safety very seriously and work hand-in-hand with law enforcement anytime a serious issue arises. In addition, school policies allow for short and long term suspensions of students when necessary to maintain order and safety in our schools.”
SECTION 30-4-40. Matters exempt from disclosure.
A public body may but is not required to exempt from disclosure the following information:…
(2) Information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy….Employee Confidentiality
Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the local board of education. If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the local board education setting forth the specific acts or omissions that are the basis of the dismissal.
The office or station to which the employee is currently assigned.
(b) For the purposes of this section, the term "salary" includes pay, benefits, incentives, bonuses, and deferred and all other forms of compensation paid by the employing entity.Employee Confidentiality
10. Do not engage in private social media activities while on the clock. If it would be inappropriate to take a phone call, it is inappropriate to text or email.
9. Do not discuss issues of a controversial nature in “public spaces” on-line (i.e. pages that can be accessed by lots of folks). Remember, it’s not a crime for others to show your FaceBook postings to the World . . . and your boss!
8. Do not bad mouth students in cyberspace!
7. Do not bad mouth parents in cyberspace!
6. Do not bad mouth co-workers or your bosses in cyberspace! There is no “free speech” protection when you are griping about your boss.Top Ten Common Sense Rules for the Appropriate Use of Social Media
5. Do not post photos that you would be embarrassed to see on a billboard in your hometown. Your “friends” will show these photos to the World . . . and your boss.
4. Cyber and electronic communications between employees and students should never be of a personal nature. The school system hires school counselors if a student is in crisis.
3. Do not engage in cyber or electronic communications with students at all unless their parents and your boss know about it and approve of the practice.
2. If a student contacts you privately using cyber or electronic communications tell them not to in the future and make sure your boss knows it happened.Top Ten Common Sense Rules for the Appropriate Use of Social Media
Good Example of Safety Pledges for Elementary, Intermediate, Middle and High School Students: