Think Twice Before Tweeting up a Storm

by Robins Kaplan LLP

One of the more memorable lines from 1989’s Steel Magnolias is “if you can’t say anything nice about anybody, come sit by me.” That sentiment— referred to as “schadenfreude” in German — is amplified on social media, and this has perhaps never been so evident as in the last election cycle.

Social media platforms can be powerful forms of communication, allowing us to reach over 2.7 billion people. But engaging in social communities carries risks. Expect, for example, that social citizens will put their own spin on twitter rallies, sometimes hijacking a hashtag before it trends. And anticipate that content made available through an “official” organizational account will be expected to conform to the “official” (even if mistaken) viewpoint.

Being thoughtful about what you post is generally wise. Errant posts have undone settlements in civil suits. And Facebook photos and friendships led to criminal charges for a Southern California rapper, which were dismissed, but are now the basis of a civil rights action against the San Diego police department.

Even anonymous posts might land someone in hot water because anonymity is not guaranteed. A small business owner sued anonymous Yelp reviewers in 2012 over defamatory reviews. While a court in Virginia ordered Yelp to disclose the names of the reviewers, the state’s Supreme Court overturned that ruling on jurisdictional grounds. A court in Virginia does not have jurisdiction over a California-based company, when the data at issue was also located in California.

Two years after the Yelp decision, there was a different outcome in a defamation and invasion of privacy case brought by the actor James Woods against an anonymous Twitter user. Mr. Woods filed suit in 2015 over a Tweet that was made during a pseudo-political Twitter-spat. The court allowed the case to proceed, denying a motion to strike on the grounds that a Tweet referring to “cocaine addict James Woods still sniffing and spouting” could and would be viewed as a statement of fact based on its linguistic structure.

Although the Twitter user passed away last year, the actor continued his suit. Earlier this year, the defendant’s attorney was ordered to identify his (deceased) client.

Here’s hoping that Miss Manners will issue a definitive etiquette guide for social media. It is sorely needed.

For now, though, companies can draw some best practice tips from all of the recent shenanigans.

  • Have a social media policy in place.
    • Take affirmative steps to ensure that sensitive information is not shared via social media channels.
    • Train your employees regarding appropriate social media content, which should be accurate, fair and able to be substantiated. It should also comply with any applicable regulatory guidelines.
    • Understand that employees can (and will) engage in social communities via personal accounts, which should be distinct from your company’s official accounts. And, as employers, your ability to control the content of personal employee accounts is limited.
  • Be prudent when attempting to promote a hashtag.
  • Be watchful. Be prepared to take action if your company is subject to social media posts that are harmful to its reputation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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