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Posts Tagged ‘social media’

If You Don’t Have Anything Nice To Say….You Probably Shouldn’t Post It!

Posted on: August 22nd, 2018

By: Shaun DaughertySamantha Skolnick

Mothers all over the world have admonished their children: “if you don’t have anything nice to say, don’t say anything at all.”  It may lose something when translated into some obscure dialects, but the sentiment was still there.  Now that we live in the age of technology, it appears that the old saying could use a facelift.  “If you don’t have anything nice to say, you should not type it anywhere on the internet.”  That is especially true if you are criticizing doctors and hospitals.

A wave of litigation has been emerging involving doctors and hospitals, but in these instances, they are not the targets, they are the plaintiffs.  Doctors and hospitals are starting to sue their patients for negative reviews on social media. The most recent example earned itself an article in USA Today where retired Colonel David Antoon had to pay $100 to settle felony charges for emailing his surgeon articles that the doctor found threatening as well as posting a list on Yelp of the surgeries the urologist had scheduled for the same time as his own.  Antoon alleged that his surgery left him incontinent and impotent and he had tried to appeal to the court of public opinion.

In other news, a Cleveland physician sued a former patient for defamation after the negative internet reviews of her doctor reached the level of deliberately false and defamatory statements. The case may be headed to trial in August. Close by, a Michigan hospital sued three relatives for Facebook posts and picketing which amounted to defamation, tortious interference and invasion of privacy. The family claimed that the hospital had mistreated their deceased grandmother.

We live in a country that ensures freedom of speech, and that right is exercised more than ever with the advent of social media and an ever-growing audience of participants.  However, there can be consequences if the speech is inaccurate or defamatory in nature.  While some attorneys, like Steve Hyman, cite the law in stating that “[t]ruth is an absolute defense. If you do that and don’t make a broader conclusion that they’re running a scam factory then you can write a truthful review that ‘I had a bad time with this doctor.’”  Other commentators, like Evan Mascagni from the Public Participation Project, tout avoiding broad generalizations, “If you’re going to make a factual assertion, be able to back that up and prove that fact.” That is defense against defamation claims 101.

The world of non-confrontational criticism on social medial makes it easy and tempting to post an emotionally fueled rant.  But beware!  You want to avoid a situation like that of Michelle Levine who has spent nearly $20,000 defending herself against a suit filed by her Gynecologist over defamation, libel, and emotional distress. The 24-hour rule is still a viable alternative to hitting “send” or “post.”  Type it out, let it sit and ruminate for a bit, and then decided if you are going to post the negative comments for the world to see.  Some opinions are worth sharing, or you may decide…. don’t say anything at all.

If you have any questions or would like more information please contact Shaun Daugherty at [email protected] or Samantha Skolnick at [email protected].

Going Out with a “Goat Bang”

Posted on: July 27th, 2018

Employee’s Slang in Comments on Social Media Protected as Concerted Activity

By: Robyn Flegal

A panel of the National Labor Relations Board ordered an Iowa electric company to rehire and pay back wages to a utility pole employee who was terminated for posting on social media that the Company was a “goat bang,” which he later testified was a commentary about the utility company’s safety policies—including (a) inadequate training and (b) splitting teams into groups that were too small to ensure employee safety.  The Company learned of this social media post when employees who were offended by the post showed their supervisors.

The panel held that the Company violated the National Labor Relations Act (NLRA) by firing the employee for his post. The panel held that the social media comments (even calling the Company a “goat bang”), while not “inherently concerted” and therefore not subject to heightened protection, were “concerted activity for the purpose of mutual aid or protection.” According to the NLRB, the Company’s explanation for firing the employee was pretextual, as multiple Company witnesses said that the employee was “canned” because of his posts. Notably, the NLRB also determined that the Company’s “attitude” and “conduct” policies, which the Company pointed to in justification of this termination, were illegal under the NLRA because the policies interfered with workers’ rights.

This decision demonstrates the careful consideration employers should give to a decision to terminate an employee for raising concerns about the Company on social media. Employers should also be reminded to evaluate their seemingly neutral policies for compliance with the NLRA. For more information or to consult with one of FMG’s seasoned Labor and Employment attorneys regarding reviewing your company’s policies, contact Robyn Flegal at [email protected] or any of the attorneys in our National Employment Law Practice Group.

Facebook and Twitter: More Transparency for Political Ads

Posted on: June 4th, 2018

By: Amy Bender

In the wake of the alleged Russian interference with the U.S. presidential election through targeted Facebook ads, both Facebook and Twitter now have imposed conditions for political campaign advertisements. Since there currently are no legal requirements for posting political content on private social media platforms, the platforms have the freedom – and, some say, the responsibility – to create their own policies in order to regulate the content delivered to their users. Facebook and Instagram (which Facebook owns) now require that political ads be labeled with information such as who funded the ad, the campaign budget, the number of viewers, and their demographics. The information also will be stored in a searchable archive. Twitter will require advertisers of political campaigns for federal elections to identify themselves and prove they are located in the U.S. Further, it will not allow foreign nationals to target political ads to U.S. residents. Both platforms have cited increased transparency as the basis for these changes. Facebook also has been under scrutiny since the Cambridge Analytica/user data breach incident, as we reported here.

It remains to be seen if these measures will help regulate political content and if more social media platforms will follow suit.

If you have any questions or would like more information, please contact Amy Bender at [email protected].

Countries Around the World Are Investigating Facebook’s Cambridge Analytica Event

Posted on: April 26th, 2018

By: Allen E. Sattler

On March 18, 2018, news broke of the Cambridge Analytica event where the data of an estimated 87 million Facebook users was disclosed to the UK-based political consulting firm.  The breach of user data resulted in several U.S. investigations, including by Congress and by the Federal Trade Commission (“FTC”).  Facebook entered into a consent decree with the FTC in 2011, where Facebook agreed to never make deceptive claims concerning users’ privacy and to obtain users’ informed consent before changing the way in which it shares their data.  The FTC is investigating whether Facebook violated the terms of this agreement which carries a possible $40,000 per-violation fine.

On April 10 and 11, Mark Zuckerberg appeared before Congress where he testified that Facebook failed to protect its users’ data and that Facebook “didn’t take a broad enough view” of its responsibility in ensuring the privacy of its users following its initial discovery of the Cambridge Analytica event.  He also accepted personal responsibility for the matter as the company’s founder and CEO.

What might have been lost in the flurry of domestic activity is the amount of scrutiny Facebook is receiving by nations around the globe.  This breach involved users from many countries, with over 1 million affected users in each of four different countries.

The European Union launched an investigation into Facebook on March 19, and the United Kingdom and Australia quickly followed.  Under Australian privacy laws, the government has the authority to issue fines against Facebook of up to $1.6 million if it determines that Facebook violated those laws.

Countries of southeast Asia soon followed with investigations of their own.  Indonesia, which is home to over 115 million Facebook users, 1 million of whom were affected by this breach, launched an investigation on April 6.  Under Indonesian law, the government can assess fines against Facebook representatives personally of up to $870,000.  Singapore has opened an investigation as well, where it has already questioned Facebook executives located in their country.

The Philippines announced its investigation into Facebook on April 13.  The county was rated as the biggest user of social media several years running.  Research indicates that Filipinos spend almost four hours per day on various social media platforms.   This breach affected nearly 1.2 million Filipinos, and news reports indicate that Cambridge Analytica might have helped President Rodrigo Duterte in his successful 2016 campaign.  The event therefore has enormous significance to Filipinos.

On Friday, April 20th, Germany became the latest country to open an official investigation into the Facebook.  Germany’s data privacy regulator said fines could be levied against Facebook in the amount of 300,000 euros ($366,000).

Facebook had revenues of more than $40 billion last year, so the fines that each country might assess against the company seem relatively insignificant.  The investigations launched against Facebook can nevertheless have a big impact on the company and on the entire industry.  This event has garnered the attention of countries around the world, and it has already led to a greater awareness of privacy concerns that exist on social media platforms.

If you have any questions or would like more information, please contact Allen Sattler at [email protected].

 

Antisocial Media: Court Critical of Cop Capturing Curious Citizen’s Cellphone

Posted on: April 23rd, 2018

By: E. Charles Reed, Jr.

The Eleventh Circuit Court of Appeals has held that a police officer violates clearly established law by seizing a bystander’s cellphone at an accident scene in the absence of exigent circumstances.

With the rise of social media and the availability of devices with cameras, newsworthy events and potential evidence of criminal or civil liability can be captured by citizens with fortuitous timing and cellphones. While the methodology of capturing potential evidence has changed, constitutional principles associated with law enforcement’s gathering of that evidence has not. One law enforcement official recently learned this lesson the hard way in Crocker v. Beatty, 2018 U.S. App. LEXIS 8290 (Apr. 2, 2018).

In May 2012, Deputy Steven Beatty arrived at an accident scene involving an overturned SUV.  By the time Beatty had arrived, several bystanders, including a citizen named James Crocker, had taken photographs and video of the scene with their cell phones. Crocker captured images of empty beer bottles, the overturned vehicle and emergency personnel, but no images of the persons involved in the accident. Beatty approached Crocker, took his cellphone and instructed him to leave the area and wait for instructions about when his phone would be returned. Crocker refused to leave and offered to delete the footage in return for his phone. Instead, Beatty placed Crocker under arrest for resisting an officer without violence.

On appeal at the summary judgment stage, the Eleventh Circuit affirmed the trial court’s denial of qualified immunity for Beatty. First, the court rejected the argument that Beatty’s seizure was justified by exigent circumstances because Crocker was a non-suspect bystander with no motive to delete any photographs. The fact that Crocker’s cellphone could later be lost did not create an exigency.

More importantly, the Court held that the right to be free from warrantless seizures of personal property was established with “obvious clarity” in May 2012 such that Beatty should have known his conduct violated federal law. “Our case law has sent a consistent message, predating 2012, about the warrantless seizure of personal property and how exigent circumstances may arise. The technology of the iPhone simply does not change our analysis. To hold otherwise would deal a devastating blow to the Fourth Amendment in the face of sweeping technological advancement. These advancements do not create ambiguities in Fourth Amendment law; the principles remain as always. Because of this, Beatty is not entitled to qualified immunity.”

The Court did not address, and may not have been presented with, the policy implications for agencies responding to mass-casualty or critical incidents in metropolitan centers – where hundreds of witnesses may be present, each with different video clips taken at different times and from different angles.  However, the takeaway from this case is while technology may push products further and further into the future, the prudent law enforcement officer will apply the legal authority of the past to minimize being held liable for his or her actions.

Charles Reed is member of Freeman, Mathis, & Gary’s Government Section and regularly defends government employees in in civil rights cases.  He can be reached at [email protected] or by phone at 678-399-6351.