HR Management & Compliance, Recruiting

The Trouble with ‘Twibel’: A New Social Media Headache for Employers

You may feel like a twit when it comes to your understanding of Twitter, but it is time to add the word “Twibel” to your company’s vocabulary — and more importantly, to your overall social media strategy, says Porter Wright employment law attorney Sara Jodka.

Libel occurs when someone prints a false and malicious statement of fact about you that harms your reputation. Twibel — first coined by the media to describe a defamation claim that involved celebrity Courtney Love — occurs when someone commits libel on Twitter.

In workplace communications, libel may occur when an employee:

  • defames a competitor;
  • insults a customer;
  • shares confidential company, product or customer information;
  • invites workplace harassment or violence; or
  • openly records or registers protected complaints against other individuals or the employer.

Defamation is, by definition, comments made that are public and harmful, so it makes sense that a court would not be lenient with a defendant who made defamatory comments on a social media site as public as Twitter, say DiTommasso Lubin attorneys Peter S. Lubin and Vincent L. DiTommaso.

Nor is the online libel threat unique to Twitter’s open forum platform, with reportedly nine of 10 users opting for a public profile.

For example, although most Facebook users (72 percent, according to Consumer Reports magazine in June 2012) select a locked profile so that their comments on their wall can only be seen by their connections, they are not shielded by their privacy settings, says Rhory Robertson, partner at Collyer Bristow in London.

“An ill-considered [Facebook] post can spread much further and faster than the author ever intended,” Robertson wrote in his and co-author Tom Double’s article, “10 Years of Facebook: Where is the “Twibel” equivalent and why Zuckerberg’s creation is different (if, indeed, it is)?

Many defamation cases are dismissed because the courts determine that the statement being disputed is not an assertion of fact, but rather a pure opinion protected by the First Amendment, says Foley Hoag attorney David Kluft.

The primary difference between defamation and protected opinion is that the actionable statement contains specific allegations. For example, “calling someone ‘crazy’ is fairly understood to be part of our social repertoire of insults; whereas calling someone a tax delinquent is not,” internet tech lawyer Venkat Balasubramani wrote in his commentary on Feld v. Conway, Civil No. 13-13122-FDS (D. Mass, April 14, 2014).

In Feld, an allegedly defamatory tweet resulted in a claim dismissal because the court found the tweet should not be read in isolation, but in the context of the entire discussion; in this case, a heated internet debate about the plaintiff’s responsibility for the disappearance of her horse.

Online speech doesn’t get a free pass, but courts are increasingly willing to look at the often-heated nature of online discussions and give the defamation defendant the benefit of the doubt, says Balasubramani.

But companies needn’t be passive and give employees a free pass either. Controversial tweets and ill-conceived social media posts — on or off company time — “raise the stakes” for companies and can cause businesses a host of problems, says Jodka.

One such company experiencing the problems of illicit social media behavior is Sprint, which is being sued by a Los Angeles woman for invasion of privacy, infliction of emotional distress and identity theft after several sexually explicit photos of her were posted to her Facebook profile from a phone that she traded in to a Sprint store. The lawsuit claims that an employee at the Sprint refurbishing factory logged into her Facebook profile using the application of her old phone and posted them.

“No company is immune,” says Jodka. “Even the biggest companies have horror stories to share.”

Workplace Social Media Policy

As a result of increased litigation in the social media context, many companies have developed social media policies to protect their business from lawsuits.

While courts continue to struggle to adapt the law to new and changing technology, the implementation of a social media policy is essential to handling employee use of workplace technology.

A social media policy should outline for employees — including managers — what is appropriate on social media and what is not, says Jodka.

Any social media policy should clearly communicate to employees that: (1) their social media activities — whether work-related or non-work-related, conducted during business hours or off hours — are not private; and (2) they are accountable for their social media activities. In this regard, a social media policy is no different from any other policy — employees should be warned that violations are subject to discipline, up to and including termination.

If nothing else, there is one message you should ensure is included in a social media strategy and policy for your workplace, and communicated to your employees: Think before you click.

Remind your employees: If there is any risk of embarrassment by a Facebook post or a tweet ending up on the front page of your local newspaper, or being read by a judge or to a jury, do not send it. Err on the side of caution.

Companies with social media accounts should have employees who have access to those accounts sign usage and guidance contracts that set forth what they can and cannot say on the company’s behalf, says Jodka.

Whether you require staff to promote your business through Twitter or make new contacts on LinkedIn, it is vital to have a social media policy in place — or else risk legal trouble with Twibel.

Thompson Online Resource

Think Before You Click: Strategies for Managing Social Media in the Workplace

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