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What You Say Online Could End Up in Court

Only post information that you would allow to be broadcast on national television.

What you are texting may end up being a legal problem. You post your accomplishments, comments, critiques and rants on Facebook and MySpace. You Twitter you complaints. Your open communications could be used as part of a legal action against you or your enterprise

Many of these communications are done on impulse, immediately, without any consideration of the consequences. The ramifications could be far reaching, career ending and create legal complications. When you send out information that you assume is limited to a trusted group, you cannot ensure that the communications ends up only with the trusted recipients. Even if you really believe you are safe, only post information that you would allow to be broadcast on national television.

In this era of patent suits, product litigation and enterprise reputation errors, what is communicated will probably become public. Has an employee ever criticized or ranted about your organization? Have they bragged about accomplishments that should not be broadcast publicly because it may harm the enterprise? Does the criticism/rant reveal internal problems that, although they may be exaggerated, could cause problems in customer relations, public enterprise image or even be used in a court case?

I was reading the article, "When What Happens Online Ends Up in Court" by Robert Ambrogi, posted at IMS Expert Services. There are 10 examples of what lawyers and judges, who should know better than the average citizen, have mistakenly done that got them into trouble. The lead-in for the article states:

What happens in Vegas stays in Vegas. The same is not true of what happens online. With increasing regularity, litigants, lawyers, witnesses, jurors and even judges are seeing their online activities come back to haunt them in court.

I selected one of the 10 examples to give you an idea of what can happen to well educated professional people when they do not consider their actions when participating in social networking.

Blogging makes bad medicine
When a doctor decided to blog his own med-mal[practice] trial, it was a prescription for trouble. The doctor, known to his readers only as Flea, was already writing his blog when he was served with a lawsuit. As the case progressed, he periodically posted about it, describing his feelings when he was served with the complaint and reported on his own deposition.

When the trial finally got underway, he continued to blog, relaying his impressions of the plaintiffs' lawyer (whom he nicknamed "Carissa Lunt"), describing his "dress rehearsal," and accusing jurors of dozing off. While he may have thought his blogging had gone unnoticed by others in the courtroom, that was anything but the case.

During cross-examination of the physician, the plaintiff's attorney--the very one the doctor had described on his blog--surprised him with the question, "Are you Flea?" Yes, he sheepishly admitted. It was, according to one news account, a "Perry Mason moment."

The next morning, the parties entered into a confidential settlement reported to be "substantial." Ironically, jurors probably had no sense of the import of the question. But it was enough to signal that the plaintiffs' lawyer was prepared to delve into the blog in open court. Given some of what Flea had written there, settlement no doubt seemed the wiser course.

When the trial finally got underway, he continued to blog, relaying his impressions of the plaintiffs' lawyer (whom he nicknamed "Carissa Lunt"), describing his "dress rehearsal," and accusing jurors of dozing off. While he may have thought his blogging had gone unnoticed by others in the courtroom, that was anything but the case.

During cross-examination of the physician, the plaintiff's attorney--the very one the doctor had described on his blog--surprised him with the question, "Are you Flea?" Yes, he sheepishly admitted. It was, according to one news account, a "Perry Mason moment."

The next morning, the parties entered into a confidential settlement reported to be "substantial." Ironically, jurors probably had no sense of the import of the question. But it was enough to signal that the plaintiffs' lawyer was prepared to delve into the blog in open court. Given some of what Flea had written there, settlement no doubt seemed the wiser course.

I am not recommending that the enterprise capture and read all the postings. I am recommending that the enterprise create a strong social networking policy and POLICE the policy conformance. Many of the postings could instead be carried on an internal secure private social network that could reduce the potential problems. The policy should be enforced, possibly with the threat of the employee's termination or at least a comment in the employee's record with Human Resources.

The problems of ill considered social networking reminds me of the reactions when employees do not follow security policies. Most infractions are not punished nor is the employee’s record noted with the security infraction. When I served in the Air Force intelligence community, even a minor security infraction was fully investigated, recorded and dealt with quickly. If you let the social networking gaffes slide, you will only invite more policy infractions.

A commentator on the article left this post:

Confucius is said to have opined: "It is better to remain silent and be thought a fool then to open one's mouth and remove all doubt."