New technology pitfalls
Blogs, Twitter, Facebook can spawn abuses that result in legal action
By Phil Zinkewicz
A few years ago, several employees of a New York-based savings and loan bank decided to “liberate” some of the bank’s assets for their own selfish purposes. In engineering this embezzlement, these employees used their inter-office e-mails to communicate with each other but deleted those e-mails once they had fulfilled their usefulness. When local law enforcement officials learned of the scheme, they and the FBI raided the bank. The first things they seized were the employees’ computers.
If the miscreants involved in this crime believed they were safe because they had diligently deleted the damaging e-mails as they went along, they were sadly mistaken. They were unaware that e-mails, although deleted, can still be recovered and recreated from the hard drive. The guilty parties received serious jail sentences.
The fact of the matter is that technology is changing not only how we work and shop but also how we “connect” with clients, colleagues, and friends. We have blogs, Twitter, MySpace, Facebook, text messaging and the list goes on. Trying to distinguish what these new technologies have to offer is a daunting task for the uninitiated.
“Basically, a blog is usually somebody’s personal ramblings,” says Julianne Johnson, a teacher/writer based in Southern California, who has extensive experience with new technologies. “The ramblings may be about a Major League baseball team or the latest political developments. The blog is basically an online diary, something akin to a ship captain’s log. Reading someone’s blog is a journey through someone’s personal observations.
“Twitter is a micro-blog service. Twitter messages are called ‘tweets’ and consist of text-based posts of up to 140 characters. They are snapshots of information.
“Facebook,” continues Johnson, “is also a free-access social networking Web site. It was started up by some students at Harvard University and was initially limited to Harvard. Later it expanded to other universities, then high school students and, finally, to anyone 13 years of age and older. It has been the subject of some controversy recently, and it has been banned at many places of work to discourage employees from ‘wasting time’ using the service. Also, there are some privacy issues. In addition, you have to sign an agreement with Facebook that says whatever you put on the service belongs to them.”
These new technologies are not inherently dangerous, but they have the potential for abuse and that potential is where the perils lie. In an office situation, for example, employees might access sex-related sites, leaving an embarrassing “trail” to the company, exposing the company to potential liability for hostile environmental sexual harassment. So far, there is little precedent for holding a company liable for the sexual harassment of a co-worker arising out of Internet activities, but some say it is only a matter of time.
Heather L. Gatley, a media and communications attorney with Steel Hector & Davis, LLP, says: “Sexually explicit material downloaded from a Web site, whether it is displayed on one’s computer in the form of a screen saver, placed in one’s work area, or forwarded to others, is no different than displaying a sexually explicit ‘pin-up’ and may, likewise, be perceived as harassment.”
E-mails can be an avenue to harass, defame or discriminate against others, says Gatley. In order to protect themselves, employers should establish an e-mail protocol and state in writing that violations of that protocol will result in disciplinary action, up to and including discharge, she says.
“Additionally,” she adds, “supervisory employees should be cautioned to steer clear of casual e-mail discussions about employee qualifications and terminations. Also, employees must be taught to stop viewing their e-mail as ‘private mail’ and be made aware that the employer can access their workplace electronic communications.”
But it’s not only in the workplace that technology abuses occur. Most people use the new technologies to convey information about themselves, to gather information about others, or just to have fun. But there are some who use the technologies for pranks and spiteful—even criminal—behavior. The Media Law Resource Center (MLRC) tracks cases brought against bloggers and others. So far, the MLRC has tracked a total of more than $16 million in damages against bloggers.
Here are some examples of technology abuse:
• In 2008, sheriff’s detectives in Boulder, Colorado, launched an investigation into who created a MySpace page that purported to be a profile of a Colorado woman, and even used her legitimate MySpace photos—but it had not been created by her. The MySpace page, named “Dirty Whore,” said the woman wanted to meet “men, women and/or couples who were looking to have a fun time.”
• A Florida high school teacher sued a male student over sexual comments that were posted along with her photo on the student’s MySpace page. The student was suspended from school and the case was apparently settled in 2007.
• Journalist Lee Kaplan was awarded $7,500 in 2007 in his suit against Yaman Salahi over comments Salahi made in his blog, “Lee Kaplan Watch.”
• The New School in Orlando, Florida, sued the mother of a former student for posting criticisms of the school on her AOL Hometown Web site. They apparently reached a settlement in 2008.
• Basketball player Tony Parker sued photo agency X17 over its celebrity news blog alleging that he had an affair shortly after his marriage to actress Eva Longoria. The site published an apology in 2008.
Of course, one of the most dramatic and most publicized examples of technology abuse came about when a Missouri mom, Lori Drew, impersonated a teenage boy on a MySpace page in order to “cyber-bully” Megan Meier, an acquaintance of her daughter. Her online actions led to the suicide of the teenager in November 2008. Drew was convicted of three misdemeanor charges (reduced from felonies).
Play it safe
Where does the insurance industry stand in all this? According to Insure.com, an online consumer information service, the standard homeowners policy won’t respond for claims of libel, slander or defamation of character. “If someone sues you for what you’ve said online, that’s a personal injury claim,” says Amy Danise, Insure.com editor. “Some custom homeowners policies (for high-end homes) include coverage for personal injury. Otherwise, if you want your insurance company to rescue you, you’ll need a personal injury endorsement to your homeowners policy or an umbrella policy that includes personal injury.”
However, Danise points out that even with a personal injury endorsement or other coverage, you can’t act with impunity online. “A personal injury endorsement from the Insurance Services Office (ISO) outlines specific exclusions,” she says.
“For example, you won’t be covered for problems that are business-related. So if you’ve posted a blog that’s related to your profession, this may be excluded. Also, you won’t be covered if you’ve posted or published material that you knew was false. That’s intentional and malicious, and not covered. If you spread hurtful gossip online without knowing for sure whether it’s accurate, you have entered a gray zone. Also, you won’t be covered for criminal acts.”
Of course, that’s the way things stand right now. But technology is advancing so rapidly, there’s no way of telling what new exposures will come about and how the insurance industry will respond to them with new products in the future.
So caution your customers to play it safe where the social networks are concerned.