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TWEET – RU LIABLE?

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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TWEET – RU LIABLE?

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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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