Transcript Social Media: Battling the Modern Day Medusa

Social Media: Battling
the Modern Day Medusa
North Carolina School Superintendents Association
Superintendent’s Summer Leadership Retreat
Grove Park Inn, Asheville NC
June 23, 2014
Christopher Z. Campbell
Campbell Shatley, PLLC
[email protected]
Social Media: We Can’t Help But Look at It!
The Snakes that Can Bite!

Twitter

Facebook

Instagram

Flickr

Tumblr
The Venom!

Defamation

Cyber-bullying

Insubordination
The Mirrored Shield
Deal with the ISSUE
NOT the form of
Social Media
Defamation against You or Slander
Against the School System
Is the posting
legally actionable?
Law of “Twibel”
Libel (written defamation) + Twitter
(i.e. any social posting) = Twibel
Legal Test is the same for libel no
matter the venue with one important
exception
Libel = Tort
A written statement that is false and tends to
malign the Plaintiff in his or her profession or
business or disparage the Plaintiff’s integrity in
his or her profession or business.
Types of Libel:
 Per se – obviously defamatory
 Statements subject to two legitimate
interpretations, one defamatory and one not.
 Per quod – requires external evidence to
become defamatory
Twibel
Elements for Libel in general =
1) A written statement that is false and tends
to malign the Plaintiff in his or her profession
or business.
2) The statement must be “published” to a third
party who understands its meaning.
3) Statement must assert actual facts instead
of rhetorical hyperbole and expressions of
opinion
Twibel
4) The cause of action belongs to individuals and
corporations. However, could a Board of
Education ever be a successful plaintiff
in a lawsuit for defamation?
5) If per se, nominal damages of $1 are
available to the Plaintiff even if actual
damages are not proven.
6) Otherwise, actual damages resulting
from the publication must be proven!
Twibel
Elements for Libel against a public official or
limited public figure =
1) A defendant published false statements,
2) The statements were defamatory,
3) The statements were of or concerning the
plaintiff,
4) The statements were published to a third
person,
Twibel
5) The publication caused special damage to
plaintiff, and
6) Defendant did so with actual malice; that is,
“with knowledge that the statements were
false or with reckless disregard of whether
they were false or not.
Who is a “Public Official or Public
Figure” in Twibel Cases
According to the United States Supreme Court:
“[T]he ‘public official’ designation applies at the very
least to those among the hierarchy of government
employees who have, or appear to the public to have,
substantial responsibility for or control over the
conduct of governmental affairs.” Cline v. Brown, 24
N.C.App. 209, 214, 210 S.E.2d 446, 449 (1974), cert.
denied 286 N.C. 412, 211 S.E.2d 793 (1975)
(quoting Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct.
669, 15 L.Ed.2d 597 (1966)).
This means YOU!
Who is a “Public Official or Public
Figure” in Twibel Cases
P.S. Public figure includes individuals who
have achieved total notoriety in a public
context or voluntarily assert themselves into
a central role in a particular public
controversy (i.e. “limited public figure”).
Federal Protection for Social Media
Providers
Section 230 of the Federal Communications Decency Act of
1996
 No provider or user of an interactive computer service
shall be treated as the publisher or speaker of any
information provided by another information content
provider.
 No cause of action may be brought and no liability may be
imposed under any State or local law that is inconsistent
with this section.
 "interactive computer service" means any information
service, system, or access software provider that provides
or enables computer access by multiple users to a
computer server.
Bottom-line: The Snakes in Medusa’s Head
are NOT to blame (at least not in court)
Social media sites that allow postings
without materially editing the content of
those postings cannot be sued for defamation. Thus, social media sites have the
protections of common law “distributors” of
information as opposed to “publishers” of
information. This means that social
media sites do NOT have to remove
defamatory content even after
notification.
Advice regarding
Defamation and Social Media
1) You don’t have a mirrored shield and you can’t
cut off the head of Medusa.
2) If you truly believe you have been defamed and
financially harmed in your professional
career, seek an attorney’s opinion.
3) Stop and think: “Do I really want to prove that
this person damaged me?”
Advice regarding
Defamation and Social Media
4) Although the School Board may hire an attorney
to initially advise it and you, the School Board is
under no legal or policy obligation to pay for a
lawsuit on your behalf. The general rule is that
employees must file their own lawsuits since
public money is involved.
5) Instead of legal action, focus on what you can
control!
Advice regarding
Defamation and Social Media
6) Questions and actions?
a)
b)
c)
d)
e)
Are people reading this stuff?
Is it believable?
Is the person posting credible?
Is this a matter of public concern?
Who is damaged, if anyone?
Fight Back!
Fight Back!
1) If a response is needed, make it targeted to
the audience you care about.
2) Options include:
a) Individual phone calls, emails or letters
b) Cease and desist letter from School Attorney
or private attorney
c) Responsive postings on the same social
media site
d) Blocking offenders if you or the school
system controls the site, i.e. FaceBook
Student Cyber-bullying
A National Epidemic?
Doesn’t matter because
perception is reality.
What is it?
Unique
Characteristics
1.Anonymity
2.Accessibility
3.Punitive fears
4.Bystanders
5.Disinhibition
What is it?
Common Forms
1.Harassment
2.Denigration
3.Flaming
4.Impersonation
5.Outing & trickery
6.Cyber stalking
What is it?
Warning Signs
1.Appears sad,
moody or anxious
2.Avoids school
3.Withdraws from or shows a lack of interest in social activities
4.Experiences drop in grades - decline in academic performance
5.Appears upset after using computer or being online
6.Appears upset after viewing text message on cell phone
How to battle?
1) Investigate, investigate,
investigate
2) Catch it early
3) Involve parents for “help”
4) Better use of filtering/
monitoring software?
Responding to Parent Postings
about Students
1) Investigate, investigate,
investigate
2) Catch it early
3) Involve parents for “help”
4) Better use of filtering/
monitoring software?
FERPA “don’t go there”
Letter to Wagoner, from LeRoy S. Rooker,
Director, Family Policy Compliance Office,
March 10, 1999.
 FERPA does permit the nonconsensual disclosure of
information from education records in certain limited
circumstances.
 However, none of these circumstances permits
nonconsensual disclosure of education records to the
public, even if a parent or student has made certain
claims in public about the educational agency or
institution or certain of its employees or
representatives. This restriction applies to educational
agencies and institutions even if the information could
be obtained from another source.
Letter to Wagoner, from LeRoy S. Rooker,
Director, Family Policy Compliance Office,
March 10, 1999.
 Moreover, verification or confirmation of facts contained in
or which constitute education records without prior written
consent violates FERPA because it requires disclosure of
personally identifiable information from an education
record, or at the least, a reliance on information contained
in education records.
 The District expressed in its response that you made an
effort to only discuss information that was public
knowledge. For future reference, when the District has a
media inquiry of this nature, this Office would always
advise that the parents provide consent for the disclosure.
Letter to Wagoner, from LeRoy S. Rooker,
Director, Family Policy Compliance Office,
March 10, 1999.
 Accordingly, in a situation where the District receives a
request from the media and wishes to respond, the
District should indicate that FERPA restricts the
disclosure of information from education records, and
that in order to discuss any details from such records,
the parents will have to provide their prior written
consent.
 The District may want to add that it would be free to
discuss information from education records after it
receives the parents' written consent to do so.
Duck, Pivot & Punch
 Duck and Pivot: “In accordance with federal law
we cannot discuss specific student
matters. However, we take student safety very
seriously and work hand-in-hand with law
enforcement anytime a serious issue arises. In
addition, school policies allow for short and long
term suspensions of students when necessary to
maintain order and safety in our schools.”
 Punch: “We know of no current safety issues at
the High School.”
Employee Confidentiality
South Carolina Employee Privacy
SECTION 30-4-40. Matters exempt from
disclosure.
(a)
A public body may but is not required to
exempt from disclosure the following
information:…
(2)
Information of a personal nature where the
public disclosure thereof would constitute
unreasonable invasion of personal privacy….
Employee Confidentiality
North Carolina Employee Privacy
§ 115C-320. Certain records open to inspection.
(a) Each local board of education shall maintain a record of each of its
employees, showing the following information with respect to
each employee:
(1) Name.
(2) Age.
(3) Date of original employment or appointment.
(4) The terms of any contract by which the employee is employed
whether written or oral, past and current, to the extent that
the board has the written contract or a record of the oral
contract in its possession.
Employee Confidentiality
(5)
(6)
(7)
(8)
Current position.
Title.
Current salary.
Date and amount of each increase or decrease in salary
with that local board of education.
(9) Date and type of each promotion, demotion, transfer,
suspension, separation, or other change in position
classification with that local board of education.
(10) Date and general description of the reasons for each
promotion with that local board of education.
Employee Confidentiality
(11) Date and type of each dismissal, suspension, or demotion for
disciplinary reasons taken by the local board of education. If
the disciplinary action was a dismissal, a copy of the written
notice of the final decision of the local board education setting
forth the specific acts or omissions that are the basis of the
dismissal.
(12) The office or station to which the employee is currently
assigned.
(b) For the purposes of this section, the term "salary"
includes pay, benefits, incentives, bonuses, and deferred
and all other forms of compensation paid by the
employing entity.
Top Ten Common Sense Rules for the
Appropriate Use of Social Media
10. Do not engage in private social media activities while on the clock. If it
would be inappropriate to take a phone call, it is inappropriate to text
or email.
9.
Do not discuss issues of a controversial nature in “public spaces” online (i.e. pages that can be accessed by lots of folks). Remember, it’s
not a crime for others to show your FaceBook postings to the World . . .
and your boss!
8.
Do not bad mouth students in cyberspace!
7.
Do not bad mouth parents in cyberspace!
6.
Do not bad mouth co-workers or your bosses in cyberspace! There is no
“free speech” protection when you are griping about your boss.
Top Ten Common Sense Rules for the
Appropriate Use of Social Media
5.
Do not post photos that you would be embarrassed to see on a
billboard in your hometown. Your “friends” will show these photos to
the World . . . and your boss.
4. Cyber and electronic communications between employees and students
should never be of a personal nature. The school system hires school
counselors if a student is in crisis.
3.
Do not engage in cyber or electronic communications with students at
all unless their parents and your boss know about it and approve of the
practice.
2.
If a student contacts you privately using cyber or electronic
communications tell them not to in the future and make sure your boss
knows it happened.
Top Ten Common Sense Rules for the
Appropriate Use of Social Media
1. Don’t be a fool on FaceBook and don’t privately
text students EVER!
Common Sense Social Media
Rules for Students
Good Example of Safety Pledges for
Elementary, Intermediate, Middle and
High School Students:
Middle and High School Pledge:
Common Sense Social Media Rules for
Students
1)
I WILL THINK BEFORE I POST.
I agree not to post information and images
that could put me at risk, embarrass me, or
damage my future, such as
•
•
•
•
cell & home phone numbers
home address
sexual messages
inappropriate pictures and videos
Common Sense Social Media Rules for
Students
2)
I WILL RESPECT OTHER PEOPLE ONLINE.
I will not
•
•
•
post anything rude, offensive, or threatening
send or forward images and information that
might embarrass, hurt, or harass someone
take anyone's personal information and use it
to damage his or her reputation
Common Sense Social Media Rules for
Students
3)
I WILL BE CAREFUL WHEN MEETING
ONLINE FRIENDS IN PERSON.
I agree to
•
Ask my parent or guardian's permission
before going
• Have a parent or guardian accompany
me
• Meet in a public place
Common Sense Social Media Rules for
Students
4)
I WILL PROTECT MYSELF ONLINE.
If someone makes me feel uncomfortable or if
someone is rude or offensive, I will
•
•
•
•
not respond
save the evidence
tell my parent, guardian, or another
trusted adult
report to the website, cell phone company,
CyberTipline.com, or the police
Source: http://www.netsmartz.org/resources/pledges