Social Media Advisor – Old Claims Still Exist in New Social Media Context


                        One of the difficult things to predict with regard to the use of social media in the employment setting continues to be the extent to which traditional legal claims apply equally to new social media outlets.   We continue to advise employers that it is imperative to ensure that care is also taken to create policies and train employees on the use of social media in and out of the office setting, and not to let the informality and ease of the Internet lull employers into a false sense of security.   On July 22, 2010, a New York Supreme Court Judge applied the tort of defamation to statements on Facebook in a case that offers an important message to employers.

                        The case of Finkel v. Dauber (New York Supreme Court, Nassau County) centered on statements posted by a Facebook group known as “90 Cents Short of a Dollar.” Plaintiff alleged that she was defamed by the group’s postings that stated “unbeknownst to many, [plaintiff] acquired AIDS while on a cruise to Africa” and then “persisted to screw a baboon which caused the epidemic to spread.”   The postings further defamed plaintiff, she alleged, by stating “[w]hile in Africa she was seen fucking a horse.”   And other intelligent banter.

                        The court first acknowledged that even posts on a social networking site can be subject to the elements of a legal claim for defamation. Thus, an aggrieved individual must identify, among other things, a false “statement of fact” that was published without authorization by the subject of the statement. However, the court in Finkel noted that “’rhetorical hyperbole’ or ‘vigorous epithet’ will not suffice.” In determining whether liability lies, “context is key” and one must weigh the “broader social context or setting surrounding the communication[.]”   Under that backdrop, the court in Finkel ultimately dismissed plaintiff’s defamation claim, stating:

“A reasonable reader, given the overall context of the posts, simply would not believe that the plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such a manner she morphed into the devil.   Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other. While the posts display an utter lack of taste and propriety, they do not constitute statements of fact.”

                        Yes, this may be an extreme case. And the ultimate result of Finkel is obviously a good one for the party defending the claim of liability. But do you want to take the chance in the next case by not being proactive in today’s social media world?    Even though plaintiff here did not prevail, I think the message is clear.  

Employer Take Away – What should every employer take away from this development?

(1)       Informality is not a defense. Although context will be one factor to consider, the fact that statements are made or conduct occurs on a more informal social networking site or blog does not insulate the statements or conduct from potential liability. Employers must make sure that their written policies and employee training emphasize that informality can breed an increased risk of liability for the company, and that traditional legal theories (and employment prohibitions) apply equally to web-based statements and conduct.

(2)        Ease is not a defense either.   The ease with which employers and employees alike may converse, obtain information, and share private experiences does not mean that “old rules” do not still apply. It is still discrimination to take action because of one’s pregnancy or one’s participation in a gay and lesbian organization, even if the employer only learned that information from reading a profile page. Just as it still may be sexual harassment if the offending chatter took place on a Facebook “wall-to-wall”.   Employment policies and practices must consider whether employment-related decisions should be based, in whole or in part, on information obtained through social media sites in the first place, and, if so, which company officials should be involved in the information gathering and decision making processes.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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