By Mark VanTassel
Disclaimer: I am not an attorney, nor have I consulted one while writing this article. If you have concerns about any of these issues, please contact a licensed member of the bar.
This article is not comprehensive. For more information, follow the links below—and use your favorite search engine to find more. I focus on Facebook because this is an assignment and Facebook is—at the time of this writing—the largest social media platform. I do not believe Facebook is any better or worse than their competitors. I use their service and will continue to do so for the foreseeable future.
Introduction
Does using Facebook expose us to legal risks? The quick answer is ‘Yes…’ but to stop there would be shameless fear mongering. A better answer is that for the vast majority, benefits outweigh risks and, despite rumors, our biggest danger is not Facebook itself but other users.
Please allow me to clarify. In the first version of this article, the word ‘users’ confused everyone. When I say ‘user,’ I refer to any entity who holds an account. Obviously my friends and I are users. So are my insurance company, bank, school, and even local police department.
Some of you will no doubt object as business accounts differ from personal accounts in some ways. If want to learn about the distinctions, this link is a good place to start.
The details of business vs. personal accounts aren’t terribly relevant to my point because, in a connected world, it is easy for someone to hurt you accidentally—they merely need to post something that can be used against you.
Insurance
Insurers like to know as much about us as they can. Rules governing the technologies they can use vary from state to state and one type of coverage to another. The only thing I can claim with certainty is, they will use every tool the law allows.
The preceding paragraph sounds paranoid, so here are a couple of facts. We all know insurers use Facebook for advertising but they also use it as a research tool in fraud investigations. For example, you see your Sunday morning tee time as a way to get out of the house. You have a great time and post some photos. Your insurer uses the pictures to prove that you lied about your back pain.
Industry watchdogs worry that our posts will become part of the formulas used to determine our policy rates. The implications are huge and unknowable. More terrifying, even if I exercise tight control over the things I post, my friends and family may accidentally raise my cost of living. That photo of me trying a stogie on our camping trip could turn into a nasty argument as my insurer claims I’m a smoker and I say otherwise.
In all fairness, this segment relies on Fear, Uncertainty, and Doubt (FUD.) No one knows how this industry will evolve. Just be aware that insurance companies already use social media to help them detect fraud and may attempt to use social platforms for profiling as well. It’s a subject worth at least a little bit of your time.
Crime and Shooting Yourself in the Foot
Insurance companies aren’t the only people looking for ways to use your data, criminals are tech savvy too. Every piece of information we leave online may become the bread crumb that leads a crook to our door.
Do not post things on Facebook that could be used to blackmail you.
Do not post your true birth year.
Do not tell your entire friends list you will be out of town for the next two weeks.
Your boss may be having a hard time deciding who to cut in the next round of lay-offs. Your post about what an ass-hat he is might make his decision a lot easier—even if he isn’t part of your network, he might be a friend of a friend.
Security professionals recommend using search engines to find out what others can learn about you online. This will give you a chance to correct mistakes or request removal of information you want to keep private.
If you are a suspect in a criminal investigation, detectives will Google you, check your Facebook account, and any other service you use. If you’re a crook, please do the right thing and turn yourself in. Do not use Facebook to taunt the cops. (Craig Lynch escaped from prison and used his Facebook account to taunt law enforcement.)
I realize the ‘duh factor’ is really high in this section but please bear with me. These recommendations stem from the real life mistakes of others. Next we’ll look at good ways to help protect ourselves.
Best Practices
Read the Terms of Use. I know, they’re dry and boring and you’ve been skipping them for years without any trouble. The good news is, Facebook updated them several months ago and the new version includes much improved readability. They’re at the bottom of the page, on the right. Click the link labeled ‘Terms.’
Use your security settings to maintain separation between your personal and professional lives. You may even want to maintain different accounts for this. Hiring managers, no matter their personal feelings, are often prudes in the office. Your innocent beach trip photos may be too racy for them and they have lots of applicants to choose from.
Be careful with your humor. Some managers can take a joke, others can’t. Once, in a company email, I referred to a batch of recently laid-off employees as “the dearly departed.” To me it was just a joke but I offended the V.P. of [redacted]. (Guilty conscience, perhaps?) The result: a lecture from my manager and a friendly warning in my file. It was a small infraction and carried a small penalty. Had I purposely set out to hurt someone, it would have been worse. Which leads me to my next point.
Don’t engage in online vendettas. Libel and defamation lawsuits are an expensive nuisance at best. At worst, you may run afoul of prosecutors looking for new ways to apply existing libel laws in our changing world. More likely, Facebook may use articles 3 and 5 in Terms to justify suspension or even permanent deactivation of your account. The old advice, probably inscribed in some stone tablet somewhere, is more valuable than ever, ‘If you want to keep a secret, don’t put it in writing.’
The Legal Risk Blog has additional points. Please don’t be intimidated by the name, it is well-written and easy to read.
What we say can get us into trouble but where we say creative things has implications too.
Intellectual Property
Facebook maintains the right, in Terms of Use, article 2, to use—and sub-license—any intellectual property you post to your account. Contrary to the panicked chain letters, you still own your copyrights—Facebook isn’t trying steal from us—but should you have an opportunity to sell exclusive rights to one of your creations, having it on Facebook could complicate matters.
Facebook’s current Terms of Use document is clearly worded and—compared to Terms I’ve seen posted by other companies—mercifully short. However, the marketplace is always changing and Facebook’s legal needs will change with it. This makes the Terms a ‘moving target’ which poses an undefinable, but hopefully small, risk to users.
With a bit of extra work, there is a solution. Content posted to your own site is yours—copyright issues are simplified and you have better over-all control of your property. You can still share your latest creation on Facebook by posting the link.
Maintaining a personal blog or other web presence is easy. Many of these platforms are free and the rest are cheap.
Conclusion
Practically everything we do exposes us to some sort of risk and Facebook is no exception. With common sense and a bit of education we can tap the positive aspects of social media to gain far more than we lose.
