Social media has been extensively used, and abused, since its inception. For all the beneficial and valid uses of social media, there is a seemingly equal number of improper, illegal, and even criminal uses. Employers have been navigating social media’s use, or invasion, of the workplace since the dawn of social media, from employees using work time to scroll on Facebook to sexual harassment via Instagram. Add to these social media challenges a relatively new development: trial by social media.
Case in point is a recent incident involving Dave Portnoy and his Philadelphia bar Barstool Sports. Portnoy, a podcaster and social media influencer, is also Jewish. A patron at his bar wrote a vulgar antisemitic sign, took a picture, and posted it on the patron’s social media. Portnoy used his social media platform to lambast the patrons, without using names, and subsequently offered to send the responsible persons on a trip to Auschwitz in the hopes they would learn from the experience. One of the responsible persons then himself took to social media, outing himself by name as one of the patrons involved (although simultaneously denying responsibility), then seeking donations on GiveSendGo due to Portnoy’s alleged attempts to “destroy his life.” At last check, the GiveSendGo account had several hundred dollars in donations towards the stated $15,000 goal.
This incident arose shortly after an incident involving a mother at a park in Rochester, New York who reportedly used a racial slur towards a person who allegedly stole items from her child’s diaper bag. A passerby began videotaping the mother and accusing her of using the slur, then posted the video and a social media mob went to work to identify and then severely harass the mother. The mother sought online fundraising to assist her in relocating and other expenses, and reportedly raised over $600,000, while the Rochester branch of the NAACP also sought online fundraising allegedly to support the subject of the racial slur and his family and reportedly raised nearly $350,000.
These recent incidents are just a small sampling of the public’s developing use of social media to essentially be the judge and jury and try and convict people over social media, including employers, for a range of alleged wrongdoings, whether or not any evidence exists to support the social media “conviction.” Additionally, social media users have learned there is big money to be gained by presenting their “case” and seeking funding for their claimed injuries. These trials by social media have no proven facts, little if any solid evidence, no fact-checking, no neutral judge or referee, no information on the law, no witnesses to be cross-examined, and the jury is the ill-informed public at large. The “winners” in these social media trials often get public notoriety as well as significant monetary donations. Notably, the people involved in these social media trials still have the potential to bring claims, or have claims brought against them, in an actual court of law, with defendants including employers often required to hire expensive lawyers and/or negotiating high-dollar settlements.
Employers, managers, and co-workers are likely to be increased targets of social media blitzes and trials by social media. False allegations are just as likely as true allegations to “prevail” in trials by social media. These incidents are not simply bad Yelp reviews or angry customer posts, but instead involve a flurry of social media attention that escalates rapidly and threatens public shame, financial ruin, or even violence. Rapid responses are the key to managing these social media trials. For this reason, employers should be prepared to act swiftly, for their own and their employees’ benefit.
Tips for Employers Responding Quickly to Social Media Trials
- Employers need to act fast in response to social media blitzes that can turn into social media trials, gathering at least basic facts as quickly as possible, including documenting the fact-gathering process along the way such as who was interviewed and when and what information was obtained, as well as securing any emails, social media posts, video surveillance, and other electronic or paper evidence that could be lost if not gathered;
- Often the persons involved in and responsible for the social media trial will be known to the employer, but if not then the employer should work rapidly to identify the responsible person(s), which can sometimes be challenging if the original source is an anonymous social media post;
- If the social media blitz is limited to online comments, consider contacting Yelp, Facebook, Twitter/X, YouTube, Google Reviews, or other social medial platforms to obtain their policy and practice for removing and/or responding to false, defamatory, harmful, or threatening posts and swiftly using that platform’s policy and practice to address the online comments;
- If the social media attention has moved beyond a few social medial posts, a public response may be necessary. Before releasing any public response, consider whether the social media attention is likely to quickly die out or if it may be sustained, recognizing that predicting what goes “viral” locally, regionally, or more broadly is difficult to predict, therefore erring on the side of releasing a response may be the best approach;
- Work with communications departments or outside consultants, social media management staff, and/or in-house or outside lawyers to quickly prepare a measured, non-emotional, factual, succinct response that can be shared with traditional press as well as quickly disseminated through social media channels, have appropriate persons re-post and like the social media response, and have a spokesperson prepared to respond to any traditional press inquiries;
- Keep in mind that any response should maintain confidentiality for employees and others involved as necessary, so that any social media posting or press release or public comment should not include personal names (unless already made public), and should exclude contact information such as home address, phone number, email address, and other personally identifiable information, as well as keeping health and other information private as required by law;
- If social media attention turns into threats of violence, or acts of violence or vandalism, contact law enforcement immediately to report the incidents (keeping in mind police may not respond quickly if at all in some locations), obtain a copy of the police report or call, take photographs and video of the persons involved and any signs/statements made, document any vandalism or injuries, and consider hiring private security at the workplace if needed to ensure workplace safety;
- Simultaneous with any request to remove/respond to the social media platform and any public response, consider whether cease and desist demands should be made to the responsible person(s), including in an online response through social media as well as to the known email address(es) and home or work address(es) of the responsible persons;
- Additional legal options to consider include seeking an anti-harassment or stalking protective order using the evidence and photographs/video obtained if the legal requirements for such an order are met, as well as a threatened or actual lawsuit against the responsible person(s) for defamation, trespass, assault, battery, or other appropriate civil claims. However, it’s important to keep in mind that several states have Anti-SLAPP statutes that allow the defendant to quickly obtain dismissal and potentially recover attorney fees and costs if the lawsuit is deemed to be a mere strategic attempt to stop a person from exercising free speech rights on an issue of public interest or concern.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
