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Employees can get carried away on social media. US Airways learned this the hard way when its employee responded to a customer complaint on Twitter with an obscene picture of a woman and a toy jet. An apology and deletion of the tweet followed an hour later (an eternity in cyberspace). US Airways claims its employee made an “honest mistake,” and the incident has not spawned a lawsuit, but one can imagine situations in which the malicious online statements of an employee land the employer in legal trouble.

So what’s an employer to do? Thankfully, employers can find some solace in Section 230 of the federal Communications Decency Act (“CDA”), as a recent Indiana case illustrates. In Miller v. Federal Express Corp., an employee of a non-profit organization, 500 Festival, Inc. (“500 Festival”), and an employee of FedEx separately posted comments on media websites criticizing the plaintiff’s leadership of Junior Achievement of Central Indiana, which he ran from 1994 to 2008. Although the employees posted the comments using aliases, the plaintiff traced the comments back to IP addresses assigned to 500 Festival and FedEx and sued them for defamation.

The Indiana Court of Appeals affirmed the trial court’s dismissal of the defamation claims against 500 Festival and FedEx based on the Section 230 of the CDA. Congress passed Section 230 to protect companies that serve as intermediaries for online speech from liability for harmful content posted by third parties. A defendant claiming Section 230 immunity must show that: (1) it is a provider or user of an interactive computer service; (2) the plaintiff’s claim treats it as the publisher or speaker of information; and (3) another information at issue was provided by another content provider. Satisfying these three elements immunizes the defendant from suit, although the author of the offensive content could still be held liable.

It’s not difficult to see how Section 230 applies where, for instance, the operator of an online discussion forum is sued for defamation based on a comment posted by a forum member. The operator easily qualifies as an “interactive computer service” and can argue it is not liable for content that someone else published. But could a corporate employer qualify for Section 230 immunity? The court in Miller said yes, siding with precedent set by California and Illinois courts. An employer that provides or enables multiple users on a computer network with Internet access qualifies as a provider of an interactive computer service. Since the defamation claims tried to hold 500 Festival and FedEx liable for allegedly publishing statements made by their employees, Section 230 barred the claims.

Controlling what employees say online can be a daunting task, but it’s nice to know that employers have some protection from legal liability for the “honest” (or not so honest) mistakes of employees.

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“It’s my First Amendment right to say what I want!”  The First Amendment is commonly invoked to justify personal expression.  But did you know that the First Amendment applies only when the government is involved?  For example, the First Amendment wouldn’t prevent a private company from firing an employee for making offensive comments about the governor.  If the same employee worked for a government office, then the First Amendment might apply.  As a lawsuit recently filed against the County of Maui illustrates, the First Amendment adds a layer of complexity for public employers dealing with controversial social media activity of its employees.

The First Amendment Lawsuit Against Maui County

Neldon Mamuad is a volunteer Liquor Commissioner for Maui County and part-time aide to a Maui County Council member.  In July 2013, Mamuad started a Facebook fan page called “TAGUMAWatch,” named after a Maui police officer well-known for strict enforcement of parking and traffic violations.  The page was intended to enable Facebook users to post about “Taguma sightings” and share their thoughts about him.  TAGUMAWatch gained popularity quickly and evolved into a discussion forum on a variety of topics including news, traffic, and politics.

Mamuad claims that he didn’t publicize his involvement with TAGUMAWatch until a TV news story about the page named him as its creator.   Mamuad also didn’t identify himself as a County employee when posting to the page or suggest that he spoke for the County.

The County somehow linked Mamuad to the page.  Allegedly under pressure from the County, Mamuad changed the page’s name to MAUIWatch.  A few days later, Officer Taguma submitted a complaint to the County alleging harassment via the page.  After notifying Mamuad of the complaint and conducting an investigation, the County determined that Mamuad had engaged in harassment and cyber-bullying through social media and required him to enroll in an employee counseling program.

On March 3, 2014, Mamuad sued the County in federal court for violating his First Amendment rights.  As of the time of this post, Mamuad’s motion for a TRO was pending.

When Does Employee Discipline Violate the First Amendment?

Most forms of internet expression qualify as “speech” under the First Amendment.  That point has been driven home by recent legal developments,  including a court decision that Facebook “likes” are protected by the First Amendment, a Ninth Circuit opinion recognizing that bloggers have the same First Amendment protections as traditional journalists, dismissal of an appeal from the termination of a public school teacher, and a federal lawsuit filed by a gun rights group alleging that the Honolulu Police Department censored comments on its Facebook page.  Whenever the government is the one restricting speech, the First Amendment becomes relevant.

So how does a public employer know when it may discipline an employee for his or her social media conduct without violating the First Amendment?  The general test in the Ninth Circuit, as spelled out in Mamuad’s TRO motion, looks at these factors:

  1. Did the employee speak on a matter of public concern?
  2. Did the employee speak as a private citizen or public employee?
  3. Was the employee’s protected speech a substantial or motivating factor in the adverse employment action?
  4. Did the government have an adequate justification for treating the employee differently from other members of the general public?
  5. Would the government have taken the adverse employment action even absent the protected speech?

Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc).  For a court to find that employee discipline violates the First Amendment, the first and third question must be answered in the affirmative, the fourth and fifth question answered in the negative, and for the second question, the employee must have spoken as a private citizen.  The employee also has the burden to prove the first three factors.  If the employee is successful, then the burden shifts to the government to prove the fourth and fifth factors.

Applying this test to employee social media conduct isn’t simple, but it helps government employers assess whether the First Amendment counsels against disciplinary action.

Links:

Complaint in the Mamuad lawsuit
Motion for TRO in Mamuad lawsuit (w/o attached declarations and exhibits)

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It’s time to roundup the bills related to computer technology that the Hawai‘i legislature is considering in its 2014 regular session.  Click here for a chart summarizing the proposed legislation.  Here are the highlights:

Social Media and Internet Account Passwords:  Several bills to prohibit improper requests for access to personal social media accounts of employees and students were introduced in the 2013 session.  None of the them passed.  This year, HB2415 renews the effort to outlaw improper social media password requests.

Internet Sales Tax:  HB1651 would require online companies with arrangements with Hawaii merchants for referral of business  to collect use taxes on sales made in Hawaii.  This bill would affect online retailers like Amazon, who allows local merchants to sell their products through Amazon Marketplace.

Restrictive Covenants:  In an effort to encourage the development of technology business in Hawai‘i, a state with a relatively small geographic area, two bills (HB2617 and SB3126) would prohibit technology businesses from requiring employees to enter into noncompete agreements and restrictive covenants.  “Technology business” is defined as “a trade or business that relies on software development, information technology, or both.”

Cybersquatting: SB2958 would put the burden on a cybersquatter to prove that it did not register a domain name in bad faith or with intent to use it in an unlawful manner, provided that the person claiming cybersquatting can demonstrate the potential of immediate and irreparable harm through misuse of the domain name.

Cybersecurity Council: SB2474 would establish the Hawai‘i cybersecurity, economic, education, anfrastructure security council.

Mobile Devices: Three bills (HB1509, HB1896, and SB2729) would make it a State offense to use a mobile electronic device while operating a motor vehicle.  Certain counties already have similar laws.

3D Printing: In response to the rising availability of 3D printers, HB1802 would make it a crime to create, possess, sell, trade, or give another person a firearm made with digital manufacturing technology.

Computer crimes: A series of bills criminalizes various kinds of computer activity, including unauthorized access to a computer or network and damage to a “critical infrastructure computer” (HB1640); theft of a computer (HB1644);  or personal electronic device for storing or retrieving personal information (HB2080); and revenge porn (SB2319).

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With a single tweet, an employee of IAC (owner of websites like Match.com and Vimeo) went from relative obscurity to the target of an Internet inquisition.  Before boarding a plane, Justine Sacco posted this message on Twitter: “Going to Africa.  Hope I don’t get AIDS.  Just kidding.  I’m white!”  The tweet went viral while Sacco was en route to South Africa, oblivious to the controversy brewing online.  Death threats landed in her inbox.  Someone opened a parody Twitter account for Sacco.  A hashtag (#HasJustineLandedYet) was created to help people keep track the arrival of her plane.  IAC quickly condemned Sacco’s tweet in a press release and on social media.  The New York Times published an article about the controversy later the same evening.  The next day, IAC fired her.  Sacco issued an apology on Sunday.

Social media meltdowns are nothing new, but the story highlights four myths that can get professionals into social media trouble.

  • “I’m a pro—I know what I’m doing.”  Sacco worked as a communications director for IAC.  One might expect a PR professional to be sensitive about what their public expression, but Sacco’s expertise apparently didn’t save her from posting a message that many found offensive.  Before posting, think twice (or thrice) about how the message will be received by the public.
  • “No one will ever find out.”  Sacco’s Twitter account didn’t have many followers at the time she posted the controversial tweet—less than 200.  Having a small following can create a false sense of security that the public will never see the contents of the account.  But one doesn’t need to be an Internet rockstar to get into trouble.  Posts can go viral if a follower shares it with someone else, who in turn shares it with another person, and so on …
  • “No worries, it’s my personal account.”  Just because a social media account is designated as personal doesn’t mean it should have no filter.  Although Sacco used her personal Twitter account to make the infamous post, her account profile listed IAC as her employer.  This made it easy for readers to associate IAC with Sacco’s post.  As a result, IAC was involuntarily drawn into the controversy.  The moral of the story is that the lines between personal and professional are very blurry on the Internet.
  • “Just this one time.”  Bad judgment on social media is seldom an isolated incident.  Earlier in 2013, Sacco had tweeted: “I can’t be fired for things I say while intoxicated right?”  Because social media extends brand management beyond official company channels, companies should keep track of employees who publicly identify their employer and periodically check if those employees regularly interact in ways that damage the company brand.

The Sacco incident teaches that the value of training on good social media practices cannot be overemphasized.  The old adage about an ounce of prevention is no less true in the digital age.

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Social media can be risky business.  Whether an organization embraces or ignores social media, it or its employees probably already have a presence on a social network.  That simple reality can be costly for an organization without proper measures in place to deal with the risks of social media misconduct.  Readers of this blog are familiar with cases where business saw their reputations marred by employees who post embarrassing photos online about work mishaps or found themselves in legal trouble for firing an employee who vented on Facebook about a co-worker.

To help organizations manage the risks of social media activity, I’m proud to introduce SM Safety, a new line of services offered by my law firm.  The approach of SM Safety can be summarized in three words, each corresponding to a level of service that meets a particular need: checkup, plan, and audit.

A SM Safety Checkup is a low-cost way to ensure that an existing social media policy is legally compliant and effective.

A SM Safety Plan is for organizations who need assistance with preparing a new social media policy or enhancing an existing policy.

A SM Safety Audit is a comprehensive review of an organization’s overall presence in the social media space to identify exposure to legal risks due to social media use.

Each SM Safety service is offered for a flat fee.  To learn more about SM Safety or to obtain a quote, visit the SM Safety Services page on this site.