Kentucky Bill Would Ban Social Media Posts About Serious Injuries

A state legislator in Kentucky recently introduced Kentucky HB 170, which relates to the use of electronic media, including social media.  The bill is pretty short and simple - if passed, it would make it a crime for an individual to post any information identifying a victim of an event that results in a serious physical injury for at least one hour after the event was first witnessed. As an example, if a bystander sees a traffic accident involving serious injuries, he or she is prohibited from posting about the event on Facebook or other social media site for at least an hour.  

Supporters of the legislation argue that it can be tragic for a close relative to find out about a loved one's injuries via social media.  Opponents say the bill is unconstitutional, as a violation of the First Amendment. It's not clear that the bill has any traction, but it will be worth watching.

Post Authored by Julie Tappendorf

Social Media Records Retention Guidance for Local Governments

Is a social media post a public record that must be retained under state of Illinois record retention laws (i.e., Local Records Act or State Records Act)?   The Illinois Secretary of State has answered that question with a "it depends" in a 2015 publication called "Government Records Law and Social Media: Guidance for Illinois Government Agencies."  

The SOS first acknowledges that content on social media sites is more difficult for a government agency to control because these sites are (1) controlled by non-contracted third party entities and (2) are not subject to regulations that cover government agencies. As a result, the SOS cautions, these sites offer no guarantee that a government can control or capture everything that has been posted. 

For the most part, the guidance offered by the SOS is consistent with the practice of most government bodies, with the exception of #5 regarding FOIA requests submitted via social media sites.

Here's a summary of the 5 guidelines in the SOS' publication:

1.  Are social media posts public records?

Social media posts are public records if:

(a) the posts are made on an official public agency account or on a private account that is being used to distribute information for that agency to the public. Content posted on private accounts of public employees not used as part of their jobs is not a public record.

(b) the content posted is unique. So, if the same content is transmitted by a press release, newsletter, on the government's website, or some other method, then the government can retain the "traditional" and not the social media version.

2.  How long do I have to retain a social media post that qualifies as a public record?

Social media content that qualifies as a public record will have different retention requirements, depending on the nature of the post because records retention is based on the content of the record, not its format. For example, a social media post that includes responses should be treated like correspondence. The dissemination of information, on the other hand, is treated like press releases, meeting notices, and other informational notifications.

3.  Do comments from the public have to be retained?

Not necessarily, unless the comments trigger some action by the agency. So, if a resident posts a complaint about the government, and there is no response to that complaint, then it is not a public record. On the other hand, if a resident posts a complaint, and the government responds (either directly to the post or by taking some action to address the complaint), then the post is a public record.

The SOS also advises that governments do not have to maintain inappropriate comments or inflammatory language and can moderate their social media pages. However, governments should be careful in moderating posts so as not to implicate the First Amendment. Having in place a social media comment policy that informs members of the public of the type of posts and comments that will not be allowed is important.

4.  How do I capture content from our social media accounts?

Most of the social media sites do not allow you to download activity logs, so governments need to consider alternative methods of retaining that content that qualifies as a public record. The SOS suggests capturing screenshots, or composing messages in local software, or using third party software that captures social media content automatically. 

The SOS discourages governments from using private messaging services through these social media sites because they are difficult to retain.

5.  Do we have to respond to FOIA requests submitted through social media.

The SOS says yes, taking a broad interpretation of section 3 of FOIA that states that "[w]ritten requests may be submitted to a public body via personal delivery, mail, telefax, or other means available to the public body." 

This advice seems problematic for a number of reasons. First, if someone posts a comment on a government's Facebook page requesting a particular document, that post may or may not show up in the government's timeline due to Facebook's "formula" for publishing posts in the timeline. Second, it is not always the case that the FOIA officer is also the person administering and monitoring the government's social media sites. Third, the SOS is not the state agency charged with enforcing the Freedom of Information Act - that is the job of the Public Access Counselor of the Attorney General's office and the courts.  As we have recommended in the past, governments should adopt a Freedom of Information Act policy that clearly states how FOIA requests should be filed with the government.   

County Prosecutor Who Blogs About Political Matters Is Not Acting Under Color of State Law

John Patrick Frey, a prosecutor in Los Angeles County authored a blog called Patterico's Pontifications, where he posted about criminal law and politics. His blog included a disclaimer that his views were his own and were not made in any official manner. After Frey posted a number of stories about Nadia Naffe (a political activist) calling her a liar, illiterate, and dishonest, among other things, Naffe filed a lawsuit against Frey and the County, alleging that his blog posts violated her civil rights.

The district court dismissed the lawsuit, finding that Frey did not act “under color of state law.” Naffe appealed to the Ninth Circuit Court of Appeals, which agreed with the district court that Frey was not acting in any official capacity when he blogged about Naffe. First, the Court noted that Frey’s job as a prosecutor did not include commenting on politics, so he was not exercising his official duties when he blogged about Naffe. Second, his blog included a disclaimer that he was speaking personally, and not as a district attorney.  As a result, Naffe’s civil rights claims could not proceed against Frey, since he was not acting in his official capacity when he blogged about Naffe.  Naffe v.Frey, No.  13-55666 (9th Cir. June 15,2015). 

Attorney Not Entitled To Identity of Anonymous Poster on Avvo

In a recent appellate court decision in Washington state, a court denied a lawyer's request that Avvo (an online attorney rating site) disclose the identity of an anonymous poster who wrote a negative review of the lawyer. Thompson v. Jane Doe (Ct. App. Wash. 2015)

The review stated as follows:

I am still in court five years after Ms. Thomson represented me during my divorce proceedings. Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. She failed to show up for a nine hour mediation because she had vacation days. She failed to subpoena documents that are critical to the division of assets in any divorce proceeding. In fact, she did not subpoena any documents at all. My interests were simply not protected in any meaningful way.

The attorney claimed that the post was designed to impugn her personal and professional reputation, and that she needed the poster's identity in order to proceed with a defamation action. Avvo.com refused to release the identity of the poster, so she filed a lawsuit to compel the release. 

The court reviewed a variety of cases where courts had considered similar requests to divulge the identity of anonymous posters. The court noted that there courts had applied differing standards in these cases. For example, in Virginia, a defamation plaintiff seeking an anonymous speaker's identity must establish a good faith basis to contend that the speaker committed defamation. Other courts applied the "motion to dismiss" standard - in other words, could the plaintiff's defamation claim survive a motion to dismiss.

The Washington court rejected both standards, however, in favor of a standard that requires the plaintiff to provide supporting evidence beyond the pleading standards before an anonymous speaker's identity is released. Applying this more stringent standard, the court held that Thompson was not entitled to disclosure of the Avvo.com poster's identity.

Post Authored by Julie Tappendorf

Zoo Worker Terminated For Social Media Posts About the Public

From The Workplace Report with Ancel Glink: Offensive Comments About the Public Ends Zoo Workers Employment

Last week Brookfield Zoo, operated by the Chicago Zoological Society, discharged a worker for posting the comment “rude a** white people” in an Instagram selfie, which she then shared to Facebook. She made matters worse for herself because the photo showed her wearing her Brookfield Zoo uniform and she tagged the location as the Brookfield Zoo. The Zoo has a social media policy which prohibits its employees from discrimination and harassment, including on social media.

So, in a time where the trend is clearly to protect the speech of employees, including social media comments, what makes this employer think that this discharge will stick? Consider the following:

1. The former employee was not criticizing either fellow workers or members of management.  The NLRB has lately gone out of its way to find even offensive language by employees to be protected if it is about the workplace and/or management related to their duties in the workplace.
2. The former employee did not make the comments in the context of protected concerted activity. This factual pattern differs markedly from the Cooper Tire case on which we reported last week where picketers yelled racially charged insults at temporary replacement workers. In the Cooper Tire case, the NLRB found the offensive language to be protected as part of the concerted action of picketing and that the language, while clearly offensive, was not threatening. The Brookfield Zoo employee just made a racially offensive remark.
3. The former Zoo employee not only identified herself as an employee of the Zoo by wearing her uniform in the picture accompanying the remark, but tagged the location of her remark as the Brookfield Zoo. Had she made her remark without reference to her employment, she would probably still be employed there. As it was, her selfie in Zoo uniform with the comment clearly associated the remark to her employment and the location tag made it appear that she made the remark while at work. 
4. A strong Zoo policy prohibiting harassment and discrimination, including on social media, exists. The employer could find both that the ex-employee knew of the prohibited behavior and violated the policy. 

While employers may rightfully feel a bit gun-shy about taking adverse action against employees who make inappropriate or downright offensive statements in or about their workplace, offensive or discriminatory comments about customers are rarely protected by law. A clear policy prohibiting such behavior by employees as it relates to their employment, will generally allow the employer to take appropriate action.

Original Post Authored by Margaret Kostopulos, Ancel Glink

Anonymous Poster's Identity Must be Released in Defamation Case

Last week, the Illinois Supreme Court decided a case involving anonymous internet posters. The case involved certain online comments to a newspaper article about Bill Hadley, a candidate for county board office. Hadley v. Subscriber Doe a/k/a Fuboy, 2015 IL 118000. Specifically, an anonymous poster called "Fuboy" had posted the following comment (among others) to the online article:

Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire [a local grade school] from his front door. 

Hadley filed a defamation lawsuit against the newspaper. As part of the litigation, the newspaper provided Hadley with the IP address acquired from Comcast from which  "Fuboy's" comments originated. Hadley then sought a court order to require Comcast to release the identity of the subscriber of the IP address. Counsel for the subscriber filed a motion to quash the subpoena, and while the motion was pending, Hadley filed an amended complaint naming "Subscriber Doe a/k/a/ Fuboy" as a defendant to the defamation action. Both the circuit court and appellate court ordered Comcast to turn over the subscriber's identity, and the subscriber appealed to the Illinois Supreme Court.

The Illinois Supreme Court affirmed the lower courts' decisions that the subscriber identity should be released to Hadley. Rule 224 provides that a plaintiff is entitled to ascertain the identity of the individual who may be responsible for damages against the plaintiff. The rule has been applied in defamation cases where the plaintiff can show that discovery of the individual's identity is "necessary" and where the plaintiff has presented sufficient allegations of a defamation claim to overcome a motion to dismiss. 

To state a cause of action for defamation, a plaintiff must show facts showing that the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and the publication caused damages. Here, the Supreme Court held that Fuboy's statements impute the commission of a crime to Hadley by referring to the Sandusky sexual abuse scandal, which at the time the comment was posted, had dominated the news for weeks. That statement, the Court noted, could reasonably be interpreted to mean that "Hadley was a pedophile or had engaged in sexual acts with children." 

The Court rejected Fuboy's argument that the comment could be susceptible to an innocent interpretation. The Court also rejected Fuboy's argument that the statement was not a factual assertion, but simply opinion. First, the comment had a precise and readily understood meaning, could be readily verified, and conveyed some personal familiarity from Fuboy that suggested it had factual content. 

As a result, the Court agreed that Comcast must turn over its subscriber's identity to Hadley, in furtherance of his defamation case.

Lesson?  Nothing is ever truly anonymous on the Internet.

Post Authored by Julie Tappendorf

NLRB Again Finds Facebook Cursing About Supervisor is Ok

From The Workplace Report with Ancel Glink: NLRB Again Finds Facebook Cursing About Supervisor is Ok.

It seems to be open season on supervisors. Recently the NLRB has issued one decision after another finding that employees’ vulgar postings about their supervisors is protected speech.  Take the case of Pier Sixty LLC v. Perez and Gonzalez.

Perez was an employee of the catering company, Pier Sixty.  Employees had long complained that supervisors and management were disrespectful towards employees, with this being one of the reasons that employees petitioned for union representation.  Two days before the union election, Perez was working a catering event. His supervisor, Robert McSweeney approached him and other employees during the event with direction to “stop chitchatting and face the guests” and “spread out, spread out”. While the case references testimony that McSweeney spoke in a harsh tone at that event, it is devoid of evidence that he was cursing that night.

Perez, upset by the supervisor’s tone, and undoubtedly fueled by past circumstances and the upcoming election, posted the following statement on his Facebook page during a work break:

Bob is a nasty mother f***** don’t know how to talk to people. F*** his mother and entire f****** family.  What a LOSER!!! Vote yes for the UNION.  

Several employees saw the post, as did members of management, although Perez took the post down two days later. You can probably guess that the company fired Perez for the vulgar post.

It should also be no surprise by now that the NLRB found that Perez’s post was protected concerted activity. While the result may seem disheartening to employers, a close reading  of the decision reveals facts upon which the agency relied in reaching its decision that may not exist in most workplaces.

The NLRB analyzed Perez’s claims based on the totality of the circumstances test which incorporates a number of factors such as when and where the employee made the offensive statements, whether the employee was provoked or whether the statement was impulsive or deliberate, past practice of the employer in disciplining employees for like statements and the employer’s policies and practices. As egregious as the statement was, the employer had a few chinks in its armor as well. 

First of all, the statement was posted  two days before a union election and it contained the sentence “Vote yes for the Union.”  This is not to conclude that every vulgar statement will be protected activity if an employee just includes a statement about their union, but in this case there was, in fact, a union election two days hence.

Additionally, while the company claimed that it fired Perez for violating company policy, it failed to produce or identify the specific policy on which it relied. Finally, and maybe most importantly, evidence in the case revealed that cursing was commonly accepted in the workplace among all levels of employees, including what appears to be liberal use of  the “f” word.  

Employers should take note that before disciplining or discharging an employee for complaining about the workplace or a supervisor using offensive language on social media or away from the workplace, measure the seriousness of the conduct against other accepted language in the workplace as well as against policies. This is especially true if the nature of the complaint is common to other employees as it was with Perez.

Offensive social media posts and other statements by employees, especially when directed at a particular member of management,  require thorough analysis before issuing discipline.  The NLRB ordered Pier Sixty to reinstate Mr. Perez in this case. Often if an employer consults with an experienced labor and employment attorney before taking action, a better result can be achieved.

Post originally authored by Margaret Kostopulos, Ancel Glink