dailyPostings, eDiscovery

Be careful of the friends you make on Facebook…

If you use Facebook long enough, you invariably would befriend a lot of people, former colleagues, existing colleagues. Bad things can happen if you do not exercise due diligence in keeping your friend lists in order. For instance, what about your former colleague is now in the management? Or one of your friends become friends of the management team? I mention management because your boss can take disciplinary action against you for a Facebook news feed or wall post. This is what happened recently in a case litigated in New Jersey, linked here.

The plaintiff posted on the Facebook wall a message which the management deemed posing a threat to patient safety. In this case, the management is not a friend of the plaintiff, but a friend of the plaintiff voluntarily made a screenshot of the post and sent the screenshot to the management, without any actions by the management. The plaintiff ultimately was terminated by the company. One of the issues is whether the company violated the Stored Communications Act (SCA) by using the wall post as a reason for the termination.

The court held no with the rationale that yes, the wall post is protected by SCA but access to the wall post is authorized thus taking it outside the protection of SCA.

So when it comes to Facebook, we need to keep two things in mind: be careful with who your friends are. It just might happen that what you said on Facebook can be reported.
But ultimately, it is the advice every attorney would give to their clients that do not post anything that could potentially get you in trouble. So the best defense is not to be trigger-happen when it comes to posting on Facebook.

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