Rustin Smith, an attorney with the North Georgia law firm of Stewart Melvin & Frost, follows this growing area of law with his practice that consists of both litigation and transactional matters.
Question: Networking on Facebook is a popular way to stay in touch with family and friends, but members have to be careful about what they post or say about themselves, correct?
Rustin: Facebook users can get lulled into thinking that their posts are just viewed by friends and the people whom they have “liked.” But that’s not exactly true.
Once you post to Facebook, any comments or photos become part of the public domain. It is very difficult to take it back once you post. Also, depending on your privacy settings, your Facebook profile can be viewed by the public.
Question: So, what are some worst-case scenarios of how your Facebook page could come back to haunt you?
Rustin: Two of the biggest Facebook risk areas right now involve job applications and college admissions.
It has almost become routine these days for employers to check the Facebook pages of potential new hires. There have even been some recent instances in which employers requested a job applicant’s Facebook username and password in order to check their personal profiles – which has caused a public uproar and some calls for legislation to prevent employers from making these types of demands.
College students have faced the same scrutiny in the admissions process. According to one study, one in 10 college admissions officers inspect the Facebook and MySpace pages of student applicants. And in that study, more than a third of them found inappropriate pictures and postings that reflected poorly on the prospective students.
Simply clicking the Like button on someone’s Facebook page can also get you in trouble if you’re not careful. In 2009, a group of disgruntled employees in a sheriff’s office in Hampton, Virginia, decided to “Like” the Facebook page of a political candidate who was running against their boss. The sheriff won the race, and then subsequently let the employees go. The case went to court, but the employees were unsuccessful in getting their jobs back.
Question: Haven’t Facebook postings also been used to incriminate someone in the courtroom?
Rustin: Yes, both in civil lawsuits and criminal cases. It has become routine for attorneys to conduct online searches to uncover information about plaintiffs, defendants or witnesses that can be relevant in a court case.
Attorneys in divorce cases commonly peruse Facebook postings to gather unfavorable background information about the spouses of their clients. Online comments and photos can be used to prove that a spouse is cheating or is unfit to have custody of the children.
In any trial where a witness testifies about a person’s upstanding moral character, that person’s Facebook profile page and postings may be used to show otherwise. Likewise, if a witness says the defendant has an awful reputation, his Facebook page might be entered into evidence by his attorney to show that he is involved in civic organizations and that his many “friends” leave positive comments about him.
Online content might also be used to contradict a defendant’s testimony in court. For example, if someone denies any fault or liability in a car wreck but had posted something earlier online – for instance, “I really messed up driving home from work today. Feeling terrible about it” – that can be construed as an admission of liability. Judges will almost always admit evidence of an admission at trial.
In one Rhode Island drunk driving incident, a prosecutor found a photo on Facebook of the 20-year-old defendant mocking his court case by dressing up as a prisoner at a Halloween party – at the same time that the injured victim was still in the hospital. The judge saw the Facebook posting and sentenced the man to two years in state prison.
Question: There was an example of Facebook abuse last year involving a college student at Rutgers University who posted embarrassing photos of his gay roommate. The roommate eventually committed suicide. Is this type of Facebook abuse on the rise?
Cyber bullying on Facebook and other social media has been a disturbing trend among young people.
Just last month, a Cobb County middle school student filed a defamation case against two of her classmates for creating a fake Facebook page about her. The pranksters supposedly made false claims of sexual activity, drug use and racial bias to embarrass the student. The case is still pending, but the plaintiff’s attorney finally succeeded in shutting down the imposter Facebook page.
In the future, we’ll likely hear more about legislation to try and restrict these social media abuses. Several Georgia legislators have already proposed a “cyber bullying” bill to give schools the authority to discipline students for making character attacks through Facebook and other social media sites.