HOW THE DIVIDE BETWEEN PRIVATE AND PUBLIC, COMMERCIAL AND PUBLIC IS GETTING MORE AND MORE VAGUE.
The rise in numbers and users of social networking sites was bound always bound to bring new developments. Some years ago headlines were made with a story of a woman that fired after blogging about her employer and more case have followed. More recently I have seen the rise of articles explaining how employers, lawyers and investigators are using the social web in their arsenal of tools: for background checks on job candidates, jury members, and even clients.
In Australia we saw the emergence 8 months ago of a country’s first company promoting it actively monitors social networking sites on behalf of companies.” The company, SR7, specializes in what they call “online risk and reputation management.”
Whilst there may be some doubts raised by the director of the UNSW’s Cyberspace Law and Policy Centre, I think we can safely assume that this kind of development will be seen more and more in the future and in my view this is the logical expansion of already existing media monitoring. More and more companies are allowing their employees to make use of these sites during work time as part of their efforts to get a social media strategy going. The divide between public, commercial and private is not always as clear anymore. At the same time what employees publish may have reptational effects on your business. In legal terms it is often not clear as to what is allowed and what not: where it concerns employees’ use of these facilities and publishing about workd as well as how the information is being used.
Recently some KFC workers were fired for publishing shots of them bathing in a KFC basin on MySpace.
Telstra has been disciplining an employee for Twitter comments.
Domino Pizza employees have seen what happens if you post video’s about your abuse. And while the videos were taken of Youtube they can all still be seen here >>> Their video lead to a “manhunt” by users of Consumerist.org and through using google the store in which these employees were working was located. The employees in question are fired, charged with criminal offences and a civil claim is expected.
About two years ago I was involved myself in an insurance fraud case where a video posted on Google video by “friends” of the claimed led to declining the claim and besides that prosecution for filing a false, fraudulent claim.
A 27-year-old Australian woman, who did not want to be named, said about six months ago her employer – a large online technology company – started disciplinary action against her over a “generic” comment she wrote on the Facebook wall of a friend, who did not work at the company, outside of work hours. In this case it was not even the boss itself but a fellow employee that had seen her remarks and passed it on to her employer.
It cannot be denied that social networking sites are offering a wealth of information on people and businesses.
It can also not be denied that by now users of these sites, regardless off an expectation of privacy, should keep in mind that once things are out there they are and that there is at all times a risk of others seeing what you put out on the internet. There is at this stage unclarity about whether and how the information may be used. At the same time however, it has become a reality that employers more and more make social media research part of their employment screeing processes. I guess we can say that the days are gone when die diligence, or even a litigation backgrond check amounted to reviewing a resume and some public records or even just “googling a person.” Besides employers more and more lawyers are using the ‘new’ options for their practice, to do a background check on witnnesses, to locate experts or get a picture of an expert hired by the other side, check the backgrounds of jurors.
More and more I get requests that also include a check of the most used social networking sites sich as Linkedin, Facebook, MySpace, Bebo and a few others. And in all honesty, social networking activity may at times be revealing and provide information that adds to getting a more complete, indepth picture of potential hires or jury members. It is less formal and therefore more than once pribides additional insight into a person. The self-generated content, along with comments can provide inisght in a person’s character, values, current and past activities, prejudices, political preferences, relationship information and self-image and if not more often than not it provides good leads for additional research and/or investigations.
I have been active in the field of social networking for the past 8 years. Initially to get to know new people and for business purposes. I guess it was when I found out how linkedin works in terms of search capabilities I realized that there could be a case for being more active in this field. I remember the days well where fellow colleagues were somewhat resistant and virtually not present on these sites, that has changed quickly over the past years. I have iused social networking sites to get my hands on a range of types of information, including but not limited to:
- developing a profile on witnesses and prospective employees as well as potential business partners and investors/investments;
- tracing people that had moved, for insurance companies, civil procedures, to locate heirs and missing persons;
- to obtain more insight in the actual state of a marital status;
- reviewing pictures and movies to get a more clear insight in family members, friends and others;
- to perform a network analysis and to identify potential conflicts of interest.
In many countries facebook and myspace are amongst the most popular networks, in New Zealand Bebo has a strong following and in the Netherlands, hyves is a good place to start despite the fact that facebook is growing in importance. More and more I find people active on Twitter. Linkedin is a great site that is actively being used by a wide variety of professionals. Ecademy, whilst missing the critical mass of some of the other networks, is growing still and has a lot of professionals united. Many people tend to have a profile on more than one social or business networking site. I have found it particualrly useful to not just browse around profile pages of the siubjects involved but also on pages, blogs etc where these subjects left comments. More than once it is there that they reveal more than they would on their own site which may very well offer not much more than a nicely groomed profile.
More and more those sites are incorporating better privacy controls and under circumstances that may mean that specific profile pages are not as easily accessible. At the same time once you get a hold of email addresses and other information (some of which is often already provided by the client) it is relatively easy to get a way more complete picture. The next question, and that is the one lawyers are discussing is how you use that information, whilst the question of social networking pretexts may also come in question.
Personally I think it would be a good thing if employers especially started to accept the reality of social networking and ensure that a policy is incorporated in the staff handbook as well as in (new) employment contracts. This does not just refer to using these sites but also ownership of a network and profile. At the same time, I think that it is somewhat difficult that just say that employers are running risks when they use the information in hiring decisions and for reasons of discipline and even to dismiss certain employees. But there is another side of this coin of course. Social networking content is often referred to as self generated content. Whilst I do not deny that there is a good reason to consider human rights, at the same time it could be argued that whatever you put out there as a prospect or employee is relatively public and at the same time it could seriously affect the business /corporate image and reputation of your employer. Where employers would be wise to take legal advice in relation to social media, employees would be wise to consider the potential effect of their publications an at times even rants since you are also a face for the company that pays your check every month. There is however a large gray area where one should be able to express oneself without having to fear for repercussions.
There is however a double edged sword that appears to be going through all of this. Employers are held to be more and more careful in whom they are hiring and at the same time are not allowed to “discriminate” on certain grounds. Besides that it is argued that as an employee you should be able to let off steam, and while some do that in the pub others do that on the net.
I guess that is where the real legal battlefields will end up being. In the meantime, and for those that have an interest, on the ARCIS Fraud Discovery & Exposure Centre website you can find a listing of around a hundred popular social and business networking sites to give you an idea. The number of these sites are growing by the day and probably and I see invites for new ones pass by at least a few times a month.
In the next part I will go into more detail with some case examples and in part 3 we will look at some legal issues so hang in there. No time to waste? Why not contact us to see what we can do for you.