You tweet (or blog, post and poke) if you want to, but take care!

By | 10th January 2012

“Are you on LinkedIn?” asked my companion. I confessed that I was. “Facebook?” Well, not exactly, I replied. “Why not?” my interrogator continued. By this stage I was beginning to wish I had not started the conversation, but I had been keen to establish whether this particular litigation lawyer was into social media because our conversation had been about ways in which lawyers market themselves.

When I was a practising lawyer, I fell into the camp of “being keen on marketing” but I was always a little disappointed with the results of my efforts. Fine, if you really had a triumph to trumpet about and an audience which was interested but otherwise it always seemed to me to be rather false. Perhaps I suffered from (false) modesty, a charge which my lawyer friend threw at me recently and this was how the conversation about social media started.

I have already joined the crowd who make predictions about 2012 and I am certainly not going to go down that route again, but allow me to say that this whole social media lark is becoming all-pervasive. It is virtually impossible to pick up a newspaper these days without seeing a report about some tweet, blog post or story on MySpace or Facebook. And the companies behind the successful sites are worth mega millions as can be seen by the recent LinkedIn float and the ongoing saga about the valuation of Facebook.

Ancient as I am, I have succumbed to some of this! I am on LinkedIn for professional networking reasons and I find this is reasonably successful and certainly worth the time I devote to it. I also blog for Millnet (as you will be aware if you are reading this!) and those blogs are often tweeted by me or my splendid and ever watchful editor,  Millwright, aka Alan West. I AM on Facebook but only as part of a fledgling Millnet company site/page and I have no current intention of taking the matter any further, if for no other reason than for fear of the wrath of my children, who have made it clear in no uncertain terms that they do not expect to see their father there! Incidentally I was amused to find that none of my children is a blogger or a tweeter, but there you are, you cannot have everything!

But it will not go away! If you want to find out about the real thoughts of the likes of Diane Abbott, the apparently maladroit Ed Milliband or Peter Mandelson, then go to Twitter or pick up a newspaper where their innermost thoughts are reported daily, or sign up to one of the many social media sites and start following people. It is in fact incredibly easy and later this year Twitter will celebrate its 5th birthday. How on earth did we manage without it? After all, by mid-2010 more than 70 million tweets were posted every day!

More seriously, though, I was delighted recently to make the acquaintance of Andrea Ward who is a Senior Associate at the London office of US law firm McGuire Woods. Andrea advises on all aspects of U.K. employment law and has extensive knowledge and experience of employment tribunal litigation, for all types of claims. In addition, she regularly advises on U.K. data protection matters for domestic and international clients and is particularly interested in the challenges for employers associated with social media and IT use in the workplace, including the boundaries of employee monitoring and privacy rights. During the course of a recent meeting with her she drew my attention to an employment tribunal case in May 2011 called Whitham v Club 24 Limited T/A Ventura, which is the first judgment I have seen in this jurisdiction on the question of the privacy or otherwise of musings on Facebook.

Readers of this blog will know that I have in the past referred to a number of decisions in the courts in the US on this very subject, but, as far as I am aware this is a first for us this side of the pond. You can access the judgment via the link above (and my case note will appear in the resources section of this blog soon) but the case appears to be saying that inappropriate comments posted on a Facebook page can be taken into account when considering a claim for unfair dismissal. What price privacy on Facebook?

The moral of the tale is as before; you post on Facebook or similar sites at your peril. If you do not want others to see what you have said, do not be fooled into thinking that the privacy settings will be sufficient. If you become involved in litigation they almost certainly will not be enough if the other side can argue that what you have or may have written is, or may be, germane to the dispute.

If more ammunition were needed, I have recently read via LinkedIn the predictions for 2012 by D4 e-Discovery. You can see them here – Top 4 from D4 – eDiscovery Predictions for 2012 – and I refer you to item one because it confirms that the US courts are going to town on this subject and cites four instances including our old friends McMillen v Hummingbird Speedway, Zimmerman v Weis Markets and Lester v Allied Concrete Company as well as a case called Crispin v Audigier. The article gives a short note on each case and the lesson to be learned is “Courts are allowing opposing parties unfettered access to social media accounts and plaintiffs’ counsel are finding themselves in unchartered territory. This is just the beginning and 2012 will see even more cases involving social media and decisions regarding preservation, disclosure and access to that information.”

As I have said, you tweet (etc.) if you want to, but watch out when it comes to disclosure.