We are fast approaching a perfect storm in the world of social media. There are opinions, rulings and guidance approaching from all directions, and they promise to collide in the near future. It promises to be a spectacle along the proportions of 1991 storm that spawned the disaster (or should that be disastrous) movie “Perfect Storm”.
Some of these fronts have been approaching for some time. We have all had the ability to use Facebook, Twitter, LinkedIn and so on since around 2004 – and others before then – and although Google plans to discontinue Orkut, one of the oldest (predating Facebook by a few days), the others are all still going strong.
Individual States Have Their View…
As of March 2014, at least 26 states have introduced or implemented legislation related to social media. Each state’s law is different – but there are commonalities, with many states prohibiting employers from
- requiring or requesting applicants or employees to disclose their username or password
- requesting that an applicant or employee must access social media in the employer’s presence
- Ensuring that an applicant or employee change his or her privacy settings.
The State trend is to allow employees to keep information private if they so choose. However, the reality is a little different – the vast majority of social media users know very little about their privacy settings and accounts are often defaulted to “provide all information to anyone, anywhere”- making it difficult to prove for instance, that an individual may have been discriminated against because of information available on their public social profile that the employer (and everyone else) had access to.
That often conflicts with regulatory bodies such as FINRA and the SEC.
Regulatory Requirements Often Oppose the State View
Since 2010 FINRA has issued two regulatory notices that provide guidance on the application of its rules to social media communications. Broker Dealers are required to supervise social communications. That contradicts with the State Laws mentioned previously. So complying with FINRA supervision rules could put broker dealers in violation of state laws, which have criminal penalties.
FINRA guidance is pretty clear – there should be policies and procedures to ensure appropriate supervision, firms must be able to retain, retrieve and supervise business communications, regardless of where the content was shared and static content must be approved prior to posting. (Much, much more on FINRA rules here:
States such as Arkansas and Illinois for instance have “carve outs”, which are designed to allow an employer to comply with federal, state or local laws or rules and regulations from bodies such as FINRA.
If you become a Juror, the Rules are different
The American Bar Association (ABA) recently ruled that lawyers can search a juror’s public Internet presence. It doesn’t stop there, they can also include postings by the juror ahead of the trial, and before they’ve even been selected. Be glad to know that a friend request or a follow from the would be lawyer would be considered an ethics violation, so in the same way that they’re not going to stalk you home and sit outside your house, they won’t be asking to be your friend on Facebook. So when it comes to juries, lawyers ARE going to take a look and consider your social presence.
The new ruling advises that jurors should be advised that their social presence is being viewed, but in the absence of this, advises that Model Rule 3.5 concerning communications with jurors before, during and after a trial should be followed. The medium of communication doesn’t matter, the ABA indicates, it’s the content (now where have we heard that before??!).
The use of social media by Jurors continues to receive much attention. Way, way back in 2009, the Court Administration and Case Management Committee of the Judicial Conference of the United States recommended a model jury instruction that was very specific about juror use of social media. Following a three year study on juries and social media by a federal district and state criminal court judge, research showed that jury instructions are the most effective tool to mitigate the risk of juror misconduct through social media.
The National Labor Relations Board weighs in on disciplinary action
As employers continue to struggle with the disintegrating lines between personal and work related social activity and inappropriate employment related conduct, as covered by Section 7 of the National Labor Relations Act (NLRA).
Increasingly the National Labor Relations Board, the agency that enforces the NLRA, has found that disciplining an employee for discussing terms and conditions of employment on social media interferes with an employee’s statutory right to discuss and engage other employees in those communications. Work place. As cases detailed in the recent article from Inside Counsel, there is no one answer.
Gets confusing doesn’t it? And here we’re just talking about the USA, and three colliding entities. Recent changes from Europe on a “right to be forgotten “ruling that requires Google to process requests by private individuals to de-index outdated or irrelevant personal information also promise to add significantly to the mix and in our global economy this storm won’t stop at the right hand side of the pond.
Guest blogger, social media guru, and citizen of the world Sarah Carter regulary shares her nomadic travel experiences and social insights here with our blog audience. To learn more about Sarah and her exciting travels, follow @SarahActiance on Twitter.
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