Social Media Impacts Every Legal Area

Social Media and the Law

What you post on social media can make a huge difference in your cases, both personally and privately.

Facebook has over 1.86 billion monthly active users. By 2018, 169.2 million of those users will be from the United States. LinkedIn has 467 million users, 128 million from the United States. This includes representatives of all Fortune 500 companies. Snapchat reaches 41% of all 18-34 American users and YouTube serves up over 4 billion views of videos, every single day. The numbers are extraordinary and the type of data people share can have a substantial impact on their lives, including their interactions with the legal system. There is no area of law not impacted by social media use. Three areas where we frequently see social media use implications for our clients are: Family, employment, and business.

Family Law

Practically from day one, social media began to have an impact on family law cases, especially divorce, support, and custody. While people may “unfriend” their soon to be ex-spouses, they often do not unfriend mutual friends. In addition, children who are at least 13 years of age are often on Facebook and other sites. They, of course, will be friends with both parents. Courts frequently admit evidence involving conduct which is contrary to the claims of the parties. Images of parents drinking and/or partying can have an impact on child custody, especially if the children are in the pictures. Discussions about money can greatly impact alimony and support. Posts that may not be relevant to the case but anger ex-spouses can lead to problems with negotiations. Judges are swayed by social media content. It is important to know what areas to avoid when you are in the middle of a family law case.

Employment Law

It is easy to understand why an employer might terminate an employee who writes something negative about their company on social media. However, while it is often permissible to do so, there are times when firing an employer based on a post will violate the law and leave a company open to an expensive claim. It is important to avoid a knee jerk reaction and to consult with a lawyer about whether the content is protected, prior to making a termination decision. In addition, if one employee engages in inappropriate behavior towards another online, you may have an obligation to act. Having an appropriate social media policy can go a long way to spelling out what employees may and may not post related to your business. These social media policies must be written correctly. Over the years, many policies have been thrown out for being overbroad. If you don’t have a policy it may be time to get one. If you do, be certain to review it to make certain it is acceptable under current law.

Business Law

Different businesses have different privacy requirements and laws they must follow. Medical staff posting images of patients or identifiable information leave medical facilities open to HIPAA fines and privacy lawsuits. Publicly held companies can have problems if they share inappropriate content deemed to be seeking to impact stock prices. Failing to respond to angry customers may not lead to legal problems, but they can certainly lead to public relations disasters. Knowing what your business may and may not post, along with having an appropriate social media policy, is a critical part of protecting your business from both legal and PR nightmares.

Conclusion

The key thing to remember is that social media can impact both your private and business life. Making certain that you understand what you should and should not post online is key for protecting yourself and your business. If you have questions about how social media can impact you or your business, contact Hoffmeyer & Semmelman to learn more.

 

Do You Have a PFA? Stay Off Facebook!

Facebook and PFAs

Communicating with a protected party on Facebook is a violation of a PFA

A Protection from Abuse order or PFA is an order requiring one person to stay away from and stop communicating with another. The orders can vary as to their details, but generally, the goal is to keep one person from abusing, threatening, or harassing someone with whom they have a close relationship. In Pennsylvania, PFAs may be obtained between family members, household members and those with whom people have an intimate relationship.

If the required kind of relationship does not exist between the parties, an order called a PSVI may be an option. PSVI stands for Protection from Sexual Violence or Intimidation. These orders are used to protect victims of sexual violence or intimidation from people who are not family members.

Do Not Communicate Under a PFA or PSVI

Most PFAs and PSVIs make it clear that the restrained person is not to communicate, in any way, with the protected person. In times past, it was relatively easy to determine exactly what was meant by communication. However, these days, there are many methods of communication available. Some defendants restrained under a PFA or PSVI may seek to use alternative means of communication, such as Facebook.

The question is, does writing about the protected person on a social media site such as Facebook violate the PFA or PSVI? It seems that the answer is, yes.

Posting on Facebook May Violate a PFA or PSVI

Recently, here in Pennsylvania, an appellate Court found that writing about the protected party on Facebook was a violation of a PFA.

Commonwealth v. Lambert – The Facts

In the case in question, Mr. Lambert had a PFA order entered against him in favor of his ex-girlfriend, the Plaintiff. The order made it clear that Lambert was not to have any contact with the Plaintiff either directly or indirectly at any location. In addition, the order specifically stated, “[Lambert] may not post any remark(s) and/or images regarding Plaintiff on any social network(s), including , but [not] limited to, Facebook, Myspace, Twitter, or any other electronic networks.” 

The day after the order was granted, Lambert wrote a number of posts on Facebook. He did not use the Plaintiff’s name, but he alluded to her, discussed how he did not like how she ended the relationship, and explained how he felt about the entire situation. He also posted a picture of their shared tattoos.

During questioning by the police, Lambert admitted that some of the posts were about Plaintiff. He further admitted that he knew he was not supposed to write about Plaintiff on Facebook. However, he also felt because he did not use Plaintiff’s name, he didn’t violate the order. Lambert also thought Plaintiff had blocked him and would never see the posts.

The police and the district attorney felt Lambert violated the order. During the hearing, Plaintiff explained that the posts frightened her and it was clear that they were about her due to Lambert’s use of language and the picture of their tattoos. She felt that some of the language used by Lambert was threatening, including the phrase, “God only knows what I will do next.”

At the end of the hearing, the Court found Lambert had violated the PFA by writing about Plaintiff on Facebook. It sentenced him to 30 days’ incarceration and 5 months’ probation.

On appeal, Lambert’s attorneys argued that he did not intend to violate the order and that he did not threaten, stalk, harass or contact the Plaintiff. The defense attorneys also argued that it is a violation of the First Amendment to prevent Lambert from posting any remarks about Plaintiff on Facebook. The Court disagreed and upheld the lower court’s decision.

Were the Posts Innocent – Importance of Understanding the Order

Unfortunately for Lambert, even innocent communications violate a PFA. The order was clear on the issue of posting on Facebook. Despite this, Lambert posted about Plaintiff on Facebook. Anyone who has a PFA or a PSVI has an obligation to understand the order. If there is any confusion, it is critical that they speak to an attorney about what the order means.

In the case at hand, Lambert admitted he knew he was not supposed to write about the Plaintiff. He simply thought that avoiding using her name meant he would not violate the order. Such a claim failed to convince the court of his innocence. Not posting means not posting. Leaving out a name will not prevent a district attorney from seeking to enforce the order against the restrained party. Nor will it stop a court from finding him guilty.

Does Disallowing the Posts Violate the First Amendment?

Lambert’s attorneys argued that he has a First Amendment right to post. The Court disagreed. It held that the order was content neutral. It did not matter what Lambert wrote, he simply could not write about the Plaintiff. It is critical, the Court stated, that the government be allowed to protect the victim by preventing the restrained from communicating with her. Disallowing such protection would enable Lambert to continue “perpetuating the abuse of the victim.” Any reference to the victim, it does not matter the content, violates the order. This is acceptable under the First Amendment.

Why the Opinion on Facebook and PFAs Matters

If you are a victim and have a PFA or PSVI, the opinion handed down by the Pennsylvania appellate court provides you protection against further abuse. If your order prevents a restrained person from posting about you on Facebook, this opinion helps to protect you. While this opinion specifically mentioned PFAs and not PSVIs, there is no reason to believe it would not cover PSVIs.

If you are the defendant and have a PFA against you, it is critical that you understand that any communication means any communication. Using Facebook or any other social media site to communicate with the protected person, directly or indirectly, could cause you to be sent to prison.

Our Experience Counts

Hoffmeyer and Semmelman has decades of experience in family law and has handled PFAs and PSVIs for both plaintiffs and defendants.  If you, or someone you know, has been the victim of abuse and needs a PFA or PSVI, we are here to help. If you have an order against you and have questions or need assistance, we can help you understand and/or fight the order. Please contact us anytime for a consultation. Our number is 717-846-8846.

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