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Managing Liability in Electronic Communications and Social Media: Strategies and Implications

This session tackles the liability exposures generated by electronic communications and social media. Attendees will explore strategies to manage these risks effectively, while also reviewing real-world examples. Discussions will focus on the privacy illusion, the permanence of online content, and the responsibilities of communication, including email and electronically stored information (ESI). Participants will learn about legal duties regarding documentation preservation, effective communication practices, and the implications of social media use in recruitment and employee interactions all while ensuring compliance with applicable laws.

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Managing Liability in Electronic Communications and Social Media: Strategies and Implications

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  1. Electronic Communications & Social Media TWEET – RU LIABLE? Scott D. Collins, CRM Risk Manager – Bonfils Blood Center RIMS Western Regional Conference - September 2012

  2. 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

  3. The Privacy Illusion

  4. 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

  5. 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?

  6. E-Mail & ESI Email – a ubiquitous and useful tool for individuals, businesses, employees… AND THEIR LAWYERS!

  7. 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

  8. 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!

  9. 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:

  10. “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”

  11. 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!

  12. 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

  13. 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

  14. 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

  15. 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?

  16. 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!

  17. Monitoring Policies

  18. 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

  19. 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

  20. 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)

  21. Social Media Policy Examples • Opportunity-based • Threat-based:

  22. 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

  23. 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

  24. 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

  25. Bonus Points! “<YOUR COMPANY> Sucks”

  26. Questions?

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