Tuesday, February 22, 2011

It's Business, Not Personal...Or Is It?

Courts Are Drawing Imaginary Lines In the Social Media Sand.
Cases that center on an employee's use of social media or email use are making a distinction between "business use" and "personal use" of technological devices and services in order to determine whether an employee has a "reasonable expectation of privacy" of their postings, blogs, or transmissions when the employer reads these messages. Consequently, the best Social Media policies are those that clearly set forth a company's ownership of its devices and that an employee does not have an expectation of privacy when using company equipment, devices, servers and services. Here is my Sample Social Media Policy

Perhaps, however, the real question is, whether or not, the case law is creating a false line in the sand when it tries to draw this business use versus personal use distinction for liability purposes. In the very near future, there will likely no longer be a distinction between business and personal use of social media. Let's define Social Media as communications online, including personal and professional websites, blogs, chat rooms and bulletin boards; social networks (Facebook, LinkedIn, Twitter and MySpace), video-sharing sites (YouTube) and e-mail.

Already, employees blur the distinction between business and personal use. They (a) work from home, (b) use their PDA's for business and personal calls, videos, emails and updates, (c) "friends" on Facebook are colleagues or customers and (d) YouTube has transitioned from a site that shows personal home videos to a strategic marketing tool for Company branding. The rules for using these sites, email, and technology should be clear, not based on who owns the servers, who owns the email account, or who owns the device used. Is there a reasonable expectation of privacy for social media use? Whether the answer is "yes" or "no" should not depend on whether the use is business or personal.

Two recent email cases highlight how difficult the courts have made it to determine "privacy" based on the business or personal distinction. In Holmes v. Petrovich Development Co. LLC, (1/13/11) _Cal.App.4th_, 2011 WL 17230, a California Appellate Court determined that an employee who sent an email to her attorney from her company's computer, did not have the protection of attorney-client privilege, let alone an expectation of privacy, when her employer read that email because the employer's policy stated that it would monitor and read transmissions. Compare this case to Stengert v. Loving Care 973 A. 2d 390 - NJ: Appellate Div. 2009 where a New Jersey court determined that the employee was entitled to her attorney client privilege when she sent her attorney an email through her password protected yahoo email, even though it was sent from the company provided laptop. These are two cases with very similar facts, trying to draw a line in the sand between use of business and personal servers and coming up with contrasting case law, as a result.

Shouldn't the rules be clear: Yes, there is an attorney client privilege for any types of communications between a client and her attorney? And, no, there is no expectation of privacy when using social media? Instead, the courts are once again falling behind the times, by trying to create rules for passe technology when in the future there will no longer be this business/personal distinction?

What do you think?

Other blogs on topic:
To Facebook or Not to Facebook
Elvis Has Left the Building

P.S. I'm looking forward to my upcoming program for SHRM Legislative & Employment Update, Social NOTworking. There is still time to register.

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