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Electronic Communications & Social Media. TWEET – RU LIABLE?. Scott D. Collins, CRM Risk Manager – Bonfils Blood Center RIMS Western Regional Conference - September 2012. So what are our goals today?. Discuss liability exposures generated by e-communications and social media

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electronic communications social media
Electronic Communications & Social Media

TWEET – RU LIABLE?

Scott D. Collins, CRM

Risk Manager – Bonfils Blood Center

RIMS Western Regional Conference - September 2012

so what are our goals today
So what are our goals today?
  • Discuss liability exposures generated bye-communications and social media
  • Give you some strategies to manage these exposures
  • Discuss some examples
the privacy illusion1
The Privacy Illusion
  • “Private” posts and emails are often not
  • Anonymity is history
  • Your private, personal life is on the internet already
  • Return of the “small town” effect?
  • If you want to keep it private, don’t post it
the internet never forgets
The Internet Never Forgets
  • Your Facebook posts exist forever!
    • Often, even if you delete them
  • Situations change, friends change, but your hotheaded email from 2000 doesn’t
  • What will you think about your tweet in 20 years?
e mail esi
E-Mail & ESI

Email – a ubiquitous and useful tool for individuals, businesses, employees…

AND THEIR LAWYERS!

slide7

E-Mail & ESI

Electronically Stored Information (ESI)

More & more is the centerpiece of litigation:

  • It is saved (often forever!) and traceable
  • Often used informally, and gives a false sense of privacy
legal discovery and data preservation
Legal Discovery and Data Preservation
  • Legal duty upon notification or reasonable suspicion of litigation
    • Preserve all related documents and records
      • Including voice mail
    • Email electronic copies to Legal / Risk
    • Check with IT if unsure how to save
    • Don’t try to hide / delete / alter anything!
slide9

E-Mail – A Case Study

Lehman Brothers c.1850 – 2008

  • Lawyers appointed to investigate Lehman successfully data mined over 34 million pages of documents to uncover wrongdoing
  • Here is a sample of the search terms used:
slide10

“Speechless”

“I don’t think we should”

“shocked”

“OMG”

“Can’t believe”

“stupid”

“unsalvageable”

“Do not share this”

“confidential”

“just between us”

“DUMB”

“serious trouble”

“uncomfortable”

“too late”

“huge mistake”

“Highly sensitive”

slide11

E-Mail & ESI – What to do?!?

  • Write every email with the understanding that others may read it
  • Don't write anything that you wouldn't state verbally to the recipient in a business conversation
  • Don't write emails when you are angry or upset!
slide12

E-Mail & ESI – What to do?!?

  • Avoid using abbreviations and slang
  • Don’t label behaviors
    • e.g. Harassment, Discrimination, Retaliation
  • Skip attempts at humor…especially if serious subject
  • Be clear and concise
  • Avoid sending long emails
slide13

E-Mail & ESI – What to do?!?

  • Employees writing improper emails, esp. harassing or threatening?
    • Stop the problem quickly - inform mgmt / HR
  • Never state anything you are not willing to defend on a witness stand!
  • Beware of emotional context
    • Talk directly when problems arise
slide14

E-Mail & ESI – What to do?!?

  • Sensitive issue? Discuss over the phone, or even better…in person
  • Stick to the facts: Avoid opinions or conclusions
  • ESI is NOT erased when you hit “Delete”. It will likely stick around forever
using social media for employee recruitment
Using Social Media for Employee Recruitment
  • Responsible for what you learn
    • Visual Observations: Age, Race, Disability
    • Hobbies and Interests: Indicate health, genetic info, religion, sexual orientation, etc.
  • Can you prove it didn’t influence you?
  • Is it worth the liability?
friend your employees
Friend your employees?
  • “Friend your friends, not your employees”, good idea, but not in your SM policy
  • There are things you don’t want to know
  • Be aware of what you post if your employees or others at work will read it – remember your influence!
monitoring policies1
Monitoring Policies
  • May not protect you:
    • e.g. Client – Attorney, Facebook etc.
    • Stored Communications Act & Electronic Communications Privacy Act, Computer Fraud and Abuse Act, wiretapping laws, common law invasion of privacy theories, other
monitoring policies2
Monitoring Policies
  • What you learn may trigger liability:
    • Failure to act on criminal activity
    • e.g. Doe vs. XYC Corporation - NJ
  • Same issues with wrongful termination /discrimination claims
  • Must define what is monitored and do so uniformly
social media policies
Social Media Policies
  • Social Media is a powerful tool that can be successfully leveraged
  • Two stances:
    • Opportunity Based (do do)
    • Threat Based (don’t do)
social media policy examples
Social Media Policy Examples
  • Opportunity-based
  • Threat-based:
social media policies1
Social Media Policies
  • Beware of Labor Law issues:
    • Problem Areas: Overbroad (must provide examples)
    • Saving Clauses (not useful unless specific)
    • “Disparaging and defaming language” – not lawful – e.g. working conditions
things move fast
Things move fast!
  • JetBlue Flight 191 3/27/12
    • Q: How long did Jet Blue have to react?
    • A: Not very long!
    • Multiple videos posted before landing
    • Passengers were watching their own drama unfold on CNN live
and they hit hard
And they hit hard…
  • “Innocence of Muslims” Video
    • Protests in 20 Countries
    • Death of US Ambassador - toll still mounting…
  • YouTube - United Breaks Guitars
    • 12 MILLION+ views, Millions of $
    • One dissatisfied customer
bonus points
Bonus Points!

“<YOUR COMPANY> Sucks”