One of my favorite websites to waste time on is Buzzfeed, a "social news and entertainment company." I would estimate that 80% of the site's content is silly nonsense, but that doesn't keep me from checking it every day. The other 20% of the site is real news; the journalists on the site break news, cover ongoing items of interest, and engage in original reporting, all through its websites and social media personas, especially Twitter. A few weeks ago, I noticed that a few of the Buzzfeed staff members I follow on Twitter were commenting on an internet "thread" that started on one person's Twitter feed. I started following the story, which was compelling, but after a while, I went to bed. You can find coverage of that story here.
Apparently overnight, a social media outrage had erupted over a story Buzzfeed had posted about the Twitter "conversation." The Twitter-er who originally posed the question and started the conversation was outraged that Buzzfeed had posted her tweets without permission. The Buzzfeed journalist stated that she had permission from the authors of the other Tweets used in her story. And so began a discussion in social media circles, journalism schools, and just the internet in general over what is public and what is private when it comes to social media.
At this point, you might be wondering what this hullabaloo has to do with a blog post on the website of a criminal defense and personal injury attorney. Twitter, or social media sites in general, are the key issue here. The debate surrounding the Buzzfeed article centered on a general misunderstanding of the nature of social media sites: what you post on Facebook, Twitter, Google+, Tumblr or your own, personal blog is public information. The Library of Congress even logs and archives all unprotected tweets in order to "collect the story of America and to acquire collections that will have research value." Unless you've taken deliberate steps to protect it through the privacy features on your page, anyone can view what you've posted. Just because you don't "follow" a particular user on Twitter doesn't mean that you can't see their thoughts on the latest episode of Scandal. If they post it, it's out there.
You still might wonder what this has to do with the practice of law. Aside from wanting to inform readers of the fact that anything they put online is considered public, we also want to inform you of the consequences of not thinking before you post. While you might think it's obvious that posting photos of illegal substances, firearms, or even stolen goods could lead to trouble, apparently it isn't obvious to everyone. A Florida Instagram user found himself charged with 142 felonies after law enforcement noticed the pictures he posted on his Instagram account. His photos included pictures of guns, large amounts of cash, and drugs. Upon seeing the photo of the guns, law enforcement began investigating his home, where they found stolen jewelry, electronics, and even the guns in the photos -- which were also stolen property.
This story about a daughter's violation of a confidentiality agreement cost her father an $80,000.00 settlement. Essentially, as part of his settlement with Gulliver Prepatory School over a discrimination suit, Patrick Snay agreed not to speak about the settlement with anyone other than his wife and his attorneys. However, soon after settlement, his daughter posted a status on her Facebook page: "Mama and Papa Snay won the case against Gulliver. Gulliver is not officially paying for my vacation to Europe this summer. SUCK IT." With over 1,200 Facebook "friends," it's not surprising that the school caught wind of her proclamation. Shortly afterwards, Snay received a notice that he had broken the agreement and would be receiving no settlement. The Third District Court of Appeals for the State of Florida agreed with the school, and thanks to his daughter's post, Snay received no part of the settlement funds.
Although it should be apparent that posting photographs of your misdeeds could lead to trouble, the Facebook-brag example is a prime example of the dangers involved when posting every thought and emotion you have to social media. In its ruling, the Third District Court of Appeals in Florida found that two violations of the settlement agreement had occurred: one, when Snay's daughter bragged about the settlement on Facebook, and the other when Snay himself disclosed the settlement to his daughter, which he said he had done verbally. Potentially the only reason the Snays aren't enjoying a trip to Europe on the school's dime is because of the daughter's post. It's possible and even likely that no one would have found out about Snay's disclosure to his daughter if she hadn't posted it on Facebook.
Therein lies the danger of social media (and even, to a greater degree, text messaging). If I say something to you while you're sitting across from me at lunch, I say it, you hear it, and we might remember it, but that's it. The only way it can come back is if you or I talk about it and remember it correctly. If I tell you the same thing, but over a Facebook message, it's preserved. For who knows how long. And if what I said matters in a legal proceeding, you can bet a subpoena will be served on Facebook, compelling them to release our conversation. And unlike an oral statement, a Facebook message won't fade with time or memory.
To that end, we have recently added language to our contracts advising clients of the dangers of social media use as it pertains to representation. While verbal information can pose a threat to litigation or attorney-client privilege, the vast reaches of the World Wide Web are creating a new and unique challenges to the practice of law. At Coxwell and Associates, we stay on top of these challenges and situations and are equipped to handle any potential problem you might find yourself facing.