Social media can be a very positive tool. It can also be catastrophic. I gave a talk late last year for the University of Alabama’s annual Tort Law seminar. I advised the attorneys who were there that they should advise their clients, whether plaintiffs or defendants, as to the proper use of social media during the course of the litigation. One example I used was if a teenage child was the victim, and after the case settled in a confidential manner, he/she would post details on social media. I sensed that many in the room did not believe that would ever happen. In a real life situation, although the teenager was not the victim, her father was; her posting on Facebook cost her father $80,000. According to CNN, Patrick Snay, 69, was the former head of Gulliver Preparatory School in Miami. His contract was not renewed, and he filed an age discrimination lawsuit. A settlement was reached, wherein Mr. Snay would be paid $10,000 in back pay, an additional $80,000 in “settlement” funds, and his attorney would be paid $60,000. Shortly after the Settlement Agreement was signed, his daughter posted on Facebook: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” She had 1,200 Facebook followers, and, almost immediately, the school learned of the post. The Settlement Agreement had standard confidentiality language, including that Mr. and Mrs. Snay could not discuss the settlement with anyone except for their attorneys and other professional advisors. They told their daughter because she was being retaliated against at school, and she was concerned about her parents. The school refused to pay the $80,000, and the Third District Court of Appeal for the State of Florida found that the disclosure breached the confidentiality language: “Snay violated the agreement by doing exactly what he had promised not to do. His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school.”
Closer to Birmingham, Carol Robinson with al.com reported a 32 year old Blount County teacher pled guilty to sexting nude and semi-nude pictures of herself and asking a 15 year old boy to have sex with her. Crystal Clowdus, who is married and the mother of a young son, pled guilty to transmitting obscene material to a minor, and was sentenced to 10 years in jail, where she will serve 6 months followed by 6 months of house arrest, 5 years’ probation, surrender her teaching license and she will have to register as a lifetime sex offender.
Other recent social media nightmares include
- In Alabama, a Limestone County senior was forced to apologize to the University of Alabama at Birmingham staff after posting a “selfie” with a cadaver while on a field trip. She posted the “selfie” on Instagram, and it was removed when school officials were notified. The visiting students had been told that photos were prohibited.
- In Georgia, Deputy Chief Rex Duke worked for the Clayton State University Police Department. He worked for 8 years, and had a clean performance record. On his personal Facebook page, he posted a picture of a confederate flag, and stated “It’s time for the second revolution.” This post was made on November 6, 2012, shortly after the last Presidential election. His Facebook account was privacy protected, with only his friends having access to his profile and posts. There was no indication that he was a police officer at Clayton State, and he only left the post up for an hour. That was long enough for one of his friends to send a screen shot to the local TV station, and the story ran that night. Duke was demoted in rank and duties and his pay was reduced. He sued Clayton State alleging First Amendment freedom of speech retaliation. He lost.
- A woman, identified as J. Johnson, has filed a lawsuit against Sprint in Las Angeles alleging that after she traded in her phone, an employee reviewed her pictures and posted them on her Facebook page, making them available to her friends, family and co-workers. She alleges that when she traded her phone in, a Sprint worker told her that the contents would be wiped clean. She alleges invasion of privacy, infliction of emotional distress and identity theft. Among more than 5,000 pictures were 2 intimate photos, showing her and a man naked and both their faces visible. Her attorney is quoted as saying “It was very embarrassing, shocking, traumatizing…I think it is disgusting. I can’t fathom why someone would want to put up intimate pictures of someone they’ve never met on their Facebook page.”
Practice pointers. There are many other horror stories that become public on a regular basis about the nightmares of social media use. These are just a few, both in Birmingham, the state of Alabama, and around the country. Individuals should not expect any privacy when social media is used, and should assume that anything that is posted can become open to the entire world with one click of the mouse. Individuals should also know that criminal activity can and does take place on social media, and the loss of a job, jail, and registering as a sex offender are real consequences. Attorneys need to be aware of the consequences of the power of social media, both good and bad, including voiding a confidential settlement agreement. Employers must recognize that their employees can expose them (no pun intended) to expensive litigation and bad publicity.