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Legal Consequences of Social Networking

Jesse C. Vivian, RPh, JD
Professor, Department of Pharmacy Practice
College of Pharmacy and Health Sciences
Wayne State University

Detroit, Michigan
 



10/19/2011

US Pharm
. 2011;36(10):53-55. 

It is almost impossible to imagine a world without the plethora of social networking sites and our constant use of these services for the business, social, political, and other connectivity that keeps us in touch with the rest of the world. It’s a bit like trying to figure out how we got along so well before nearly every person you know had a cell phone, much less a “smart” phone. What’s really strange is that social networking is a relatively new phenomenon. The professional and business-related network, LinkedIn, started slowly in 2003 but has grown to 120 million registered users as of August 2011.1 Facebook launched in 2004, a mere 7 years ago, and now claims 750 million users globally.2 YouTube started showing personal videos in 2005, and Twitter came online in 2006.3 MySpace was founded in 2003 and was the most popular social network until Facebook surpassed it in 2008.4 

Social Media Liability

Along with the popular ability to communicate quickly with anyone around the world, a new era of specialty litigation in social networking liability has also emerged. “The speed and fluidity of media like Twitter can also invite inadvertent disclosure of trade secrets or nonpublic information about a publicly traded company,” stated Howard Rice, an attorney who is following social media litigation.5 Individuals can be sued for damaging remarks posted online. Employers are also subject to liability for letting employees “tweet” on business-owned machines. Companies can be charged with securities fraud by the Securities and Exchange Commission (SEC) if they use Twitter or other social media to make misstatements about a publicly traded company.6 Employers have also sued and/or terminated employees for posting disingenuous remarks about their employers, even if it was done at home, in the individual’s nonworking hours, and on personally owned equipment. 

Somehow, the concept of freedom of speech has been burdened with less “freedom” and more accountability when a company or another individual is disparaged online for the whole world to see. Given the millions of users logging on to these social networks every day, the possible damages to one’s reputation grow exponentially along with the potential liability amounts. 

For example, the 2011 Social Media Protection Flash Poll by Symantec revealed that the cost of an employee’s misstep on Twitter averaged $4 million each year.7 Given that Twitter limits posting to 140 characters per message, that works out to about $28,500 per keystroke. According to the survey, large publicly traded companies face an average of nine complaints annually for incidents in which employees allegedly posted confidential or otherwise sensitive information. The Symantec survey showed that about 94% of the companies hit with a complaint suffered negative consequences, including damaged reputations, lower stock prices, litigation costs, and lower revenues, due to social media postings.8 

While employers large and small are aware of the litigation and liability potential (82% responded that their companies have discussed social networking policies), fewer than 25% have implemented rules restricting employees from using company networks for personal postings.9 Only a small number have put in place technologies that are readily available to prevent access to social media during working hours on company-owned equipment. 

One of the first social network lawsuits widely publicized involved a 2009 case against the singer Courtney Love by a fashion designer for alleged defamatory remarks, characterized as “online rants,” made about the designer on Twitter and Facebook.10 Following that incident, as might be anticipated, several lawyers developed a niche market specializing in suing for and defending against social networking mishaps.11 As the multiple examples of networking liabilities expand, one stands out as an exceptionally easy target: posting copyrighted material.12 

According to an Advisen commercial insurance industry report, “Social network sites are magnets for copyright violation lawsuits. Millions of users post copyright-protected material lifted from other Web sites or uploaded from compact discs and DVDs. The Universal Music Group (UMG) filed a copyright infringement suit against MySpace for allowing users to upload and download songs and music videos. UMG sought damages of $150,000 per song or video posted, claiming that millions of songs and videos on MySpace pages may infringe its copyrights. Media company Viacom filed a copyright infringement suit against YouTube and its parent Google, seeking at least $1 billion in damages. Viacom charged that ‘YouTube has harnessed technology to willfully infringe copyrights on a huge scale.’”13 

In the United States, there are some “safe haven” rules to protect users from copyright infringement claims if there is a built-in mechanism permitting the copyrighted material owner to remove the offending content. Another condition of this immunity requires that the persons or organizations posting the copyrighted items do not receive any financial benefit from the copyrighted materials.14 Nevertheless, lawsuits alleging copyright infringement, defamation, and invasion of privacy rights continue to escalate in unrestrained proportions. According to Advisen's report, “Facebook paid $9.5 million [in 2010] to settle a lawsuit claiming the company’s Beacon program, which broadcast members’ transactions on affiliated websites on their Facebook pages, violated members’ privacy. A recent California lawsuit alleges that Facebook violates state privacy, publicity and consumer protection laws by sharing members’ personal information with advertisers and others for commercial purposes. The plaintiffs argue that Facebook misleads users into thinking it provides a secure environment for sharing personal information with friends.”15 

Implications for Health Care Professionals

The health care industry has, in many ways, embraced the benefits of social networking, often without considering the liability potential. One survey showed that at least 1,100 hospitals and other health care institutions have launched Web sites or joined social networks to tout their expertise and available services.16 Since 2010, the Mayo Clinic has had 200,000 followers on Twitter and also supplies video to YouTube, as well as other blogging sites.17 Word-of-mouth referrals to specialty organizations like the Mayo Clinic have been usurped by the social networking outlets as more effective advertising. Yet, even with all the benefits of embracing the social media, there are liability pitfalls that sometimes get overlooked. Health Insurance Portability and Accountability Act (HIPAA) privacy rights are among the greatest concerns. 

In April 2010, employees of a California medical center posted pictures on Facebook of a mortally wounded patient who had been repeatedly stabbed with a knife. Four employees were fired and three others faced disciplinary action as a result of this incident. In June 2010, five nurses employed by a California health organization were fired when they were discovered to have been posting messages about a specific patient on Facebook. That same year, a physician was fired by her employer hospital in Rhode Island for posting information online about a trauma patient. Even though the person’s name was not given, the hospital determined that enough information was disclosed to readily allow others to identify the patient.18 

Health care students, including those enrolled in a pharmacy curriculum, are among the most likely to get caught going beyond the boundaries of decency and good judgment when making online posts. In 2007, a researcher at a Florida hospital began tracking the Facebook postings of her students and found substantial profanity, discussions about recreational drug use, and comments about identifiable patients. Apparently, the  
students were not aware that the postings directed to their “friends” were also visible to the public.19 

A nursing student at a Kentucky university posted profane, caustic, and discriminatory comments regarding race, sex, and religion on a MySpace page. When the postings were brought to the attention of university administrators, they expelled the student from the program for violating the student honor code, which stated, in part, “As a representative of the School of Nursing, I pledge to adhere to the highest standards of honesty, integrity, accountability, confidentiality, and professionalism, in all my written work, spoken words, actions and interactions with patients, families, peers and faculty.” The student sued the university claiming she had First Amendment rights as a matter of free speech. The trial court judge dismissed the case, finding the expulsion invalid because the honor code was vague in what it required of students.20 

In a similar case, the outcome was exactly the opposite. A student engaged in an experiential teaching class as part of her education-degree requirement and certification as a teacher posted  
a picture of herself wearing a pirate hat and holding a cup. The woman looked inebriated, and she had labeled the picture “drunken pirate.” The 27-year-old woman, a mother of two children, was barred from all classrooms within the school district where she was doing her student teaching. The university also reclassified her credits and gave her a degree in English rather than in education. She sued the school district and the university, claiming freedom of speech. The judge dismissed the case, noting that during the student-teaching orientation, the university specifically warned students not to post anything online that would compromise their credibility.21 

This journal has previously noted the explosion of social networking opportunities and has started its own networking Web site for the pharmacy community, www.PharmQD.com.22 Recently, I was invited to be guest blogger on that site, with a focus on pharmacy law and ethics.23 It’s a wonderful outlet, far less formal than the articles printed in these pages, and it lets me communicate with untold numbers of pharmacists who have quite a lot of things to say. Nonetheless, I, like everyone else, need to use common sense and some restraint to avoid the potholes of liability. In the same vein, I maintain a personal Web site that is hosted by the university I work for.24 My employer, like many others, has very distinct guidelines for what can and cannot be posted using university-owned equipment. It has also placed in its student handbook—which is given to every new student whether a freshmen or PhD candidate—policies for what is acceptable for posting on any form of social media and what kinds of material are forbidden. 

Conclusion

This simple warning may be all you need to avoid the kinds of problems discussed here: Think before you post. The consequences of failing to consider the damage you might do could cost you more than you might ever have thought about. For example, potential employers, universities, and even volunteer organizations will do a Google search of your name. If anything untoward pops up, you might not be an acceptable candidate anymore. On the other side of the coin, physicians, nurses, pharmacists, and other health care professionals are also Googling the names of potential and existing patients to see if there is any trouble that might arise within the patient–professional relationship. Despite all the good things social networking can provide, there are some secrets, once thought private, that are more public than you might realize. 

REFERENCES

1. LinkedIn press center. http://press.linkedin.com/ about. Accessed September 22, 2011.
2. Facebook timeline. www.facebook.com/press/info.
php?timeline. Accessed September 22, 2011.
3. Tolentino BJ. A look at YouTube's success. Helium. September 16, 2010. www.helium.com/items/1945096-
youtubes-success-story. Accessed September 22, 2011.
4. Rucker JD. The history of social networking. Fast Company. January 24, 2011. www.fastcompany.com/1720374/
the-history-of-social- networking. Accessed September 22, 2011.
5. Elefant C. More on legal issues related to Twitter and other social media. Legal Blog Watch. May 21, 2009. http://legalblogwatch.typepad.
com/legal_blog_watch/2009/05/ more-on-legal-issues-related- to-twitter-and-other-social- media.html. Accessed September 19, 2011.
6. Commission guidance on the use of company Web sites. 17 CFR Parts 241 and 271. Securities and Exchange Commission. August 7, 2008. www.sec.gov/rules/interp/2008/
34-58288.pdf. Accessed September 20, 2011.
7. Butler KM. Twitter mishaps can cost you $28,571 per character. Employee Benefit News. July 27, 2011. http://ebn.benefitnews.com/
news/negative-social-media- twitter-incidents-cost-4- million-annually-2715950-1. html. Accessed September 19, 2011.
8. See Note 7, supra.
9. See Note 7, supra.
10. Neil M. Despite defamation suit, Courtney Love Twitters on. ABA J. March 27, 2009. www.abajournal.com/news/
article/despite_lawsuit_ courtney_love_twitters_on. Accessed September 19, 2011.
11. See Note 6, supra.
12. Online social networking: a brave new world of liability: an Advisen special report. Advisen Ltd. March 2010. https://www.advisen.com/
downloads/SocialNetworking.pdf . Accessed September 20, 2011.
13. See Note 12, supra.
14. Limitations on liability relating to material online. Digital Millennium Copyright Act (DMCA) of 1988, 17 USC Section 512(c). www.copyright.gov/title17/
92chap5.html. Accessed September 20, 2011.
15. See Note 12, supra.
16. Baldwin G. Social media: friend or foe? Health Data Management. September 1, 2011. www.healthdatamanagement.com/
issues/. Accessed September 20, 2011.
17. See Note 16, supra.
18. See Note 16, supra.
19. See Note 16, supra.
20. Cain J, Fink J. Legal and ethical issues regarding social media and pharmacy education. Am J Pharm Educ. 2010;74(10):184. www.ncbi.nlm.nih.gov/pmc/
articles/PMC3058471/. Accessed September 20, 2011.
21. See Note 20, supra.
22. Cohen H. The social side of pharmacy. US Pharm. 2009;34(6):2. www.uspharmacist.com/content/
d/straight_talk/c/13848/. Accessed September 20, 2011.
23. Jessevivian’s blog. Pharmacy Law and Ethics. www.pharmqd.com/blogs/
jessevivian. Accessed September 20, 2011.
24. Jesse C. Vivian, RPh, JD. http://jessevivian.org/. Accessed September 20, 2011. 

To comment on this article, contact rdavidson@uspharmacist.com.

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