Monday, September 13, 2010

Social Networking and TMI - Common Legal Mistakes People Make by Michael Wechsler

Over 100 million people use popular social networking and microblogging sites such as Facebook and Twitter. Every day members are having so much fun sharing their personal lives with their fans aka "followers" or with their "friends", they forget to act carefully and prudently while online. It's easy to lose yourself in the moment, such as drinking at a bar. But unlike having loose lips at the bar, your words on a social network stay there indefinitely for all to see - and that can cause significant problems. The bottom line is that Twitter, Facebook and other social networks can cause people to publicly provide "TMI" - Too Much Information.

Perhaps the most common question I have seen asked in legal advice forums is whether a person can lose their job due to a posting on Facebook or Twitter, usually one that might cast a negative light on the employer or their job. The answer to this question should be obvious - there is no First Amendment or other legal "right of free speech" to share whatever negative opinions you may have about your job and still remain employed.

A typical example of what I hear includes the following. An employee might be bored at work and wants to share this thought (like numerous other fleeting thoughts) with her "friends" on Facebook. What she might forget is that some of these "friends" might include her boss, other employees or people in common with the boss. When the employee reports for work the following day, she's told that her services are no longer needed and possibly she is told the motivation for her termination.

If the employee had a case against her employer based upon some other legally protected right, she may have made proving her case significantly more difficult. An employer typically does not need to explain to the employee the reason for termination but it becomes even more justifiable in this instance based upon the employee's own admission that she does not like her work and may not care to perform at a high level. In the United Kingdom a young woman was fired as a result of her Facebook posts. The employer's justification was that she was obviously not of the right state of mind to perform and her level of dissatisfaction and lack of enthusiasm at work caused low morale. It is difficult for any lawyer to argue against this position.

A more egregious case of misconduct occurred where a young man went out drinking one evening and called in work to take a sick day the following morning. He posted a short blurb on his Facebook page about his prior night's carousing until causing his own illness and need for a sick day. The human resources department at this man's workplace discovered his Facebook post and decided that it would terminate him since sick days were not meant to be taken in this manner. Once again, it would be difficult for any lawyer to find fault with the company's actions even if a legal right to work existed.

The bottom line - always think before you share a post on a social network. You should think twice as long before microblogging on sites like Twitter, where it's even easier to share something dangerous without thinking. There are likely no legal rights that will protect you from the consequences of your own actions of "speaking" in cyberspace without care.

Michael M. Wechsler, Esq. is an experienced lawyer and administrator of the Free Legal Advice Forums at since 1995. As a successful attorney, he has worked on cases covering Internet law, copyright and trademark, personal injury, medical malpractice, employment and discrimination and immigration law. Michael is also known as "The Law Professor" and has a popular Internet and Technology Blog.

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