I’ll never forget the moment someone in my grade in high school was suspended for three days for writing mean things on LiveJournal about another student. The question everyone in school had was, “They can do that? They can suspend you from school for something you did online?”
There’s no question about one thing: social media is a minefield, and where it intersects with the law is a particularly precarious place. As a general rule, the law is always lagging behind the march of trends in society, and this is no less true with social media. What’s so especially difficult about the legal issues of social media is the rapidity of dissemination and the anonymity with which it is done. The intricacies and complexities of these matters are not easily solved with laws on the books, which makes the legal world grope aimlessly in the dark for guidance. I think a few cautionary examples are in order to illustrate how it sometimes appear that nobody knows what to do and the results become disproportionate (note that these court rulings are specific only to certain parts of the United States and may not be applicable to you – you should consult with a local attorney about how these laws work where you live):
School Daze – A high school student filed a lawsuit in federal court, claiming her school violated her First Amendment and due process rights when she was punished for insulting her principal on Twitter. She also separately tweeted to her friends to ask them to smoke with her before school. When the school saw this second tweet, it interpreted that message as smoking marijuana and demanded that she submit to a drug test. In addition, her punishment for these messages comprised of being banned from the senior prom, the senior class trip, and graduation. Obviously, Twitter is a social media outlet on the Internet which, in no way, is associated with this high school. The student and school district settled out of court on the agreement that the student was no longer banned from the prom, class trip, and graduation, was no longer obligated to take a drug test, and was going to receive reimbursement for all of her legal expenses from the school.
More Than Just a Dating Sim – A man, the defendant in this case, connected with two other men through a dating app. Relying on the information provided by one of the two, the defendant got together with the other one, only to find out later that this other man was actually a minor. The defendant was arrested for statutory violations and endangering the welfare of a minor, charges that could land him twenty years in prison. The defendant sued the dating app corporation, saying that the corporation was irresponsible in not verifying the age of the minor. That was the ultimate reason (in legal jargon, the “proximate cause”) as to why the defendant was arrested on these criminal charges. In response, the dating app corporation is asking the court to dismiss the case because a federal law, the Communications Decency Act, should protect Internet services from being sued because of information it gets from third parties – in this case, what that means is the dating app corporation believes the law is a shield against a lawsuit because it isn’t responsible for the minor lying about his age. Meanwhile, the defendant’s criminal case is still ongoing.
Those are simply two examples of how a little indiscretion with social media can lead to some big consequences. I have read that it is now normal and expected for pre-nuptial agreements to contain clauses forbidding parties to discuss details of a divorce through social media outlets. If the hysteria surrounding Justin Carter in 2014 didn’t get your attention, remember that before you publish something on social media, ask yourself, “Will I be punished for this? They can do that?”
They probably can.
Source: New Jersey Law Journal, 217 N.J.L.J. 485, 491 (Aug. 18, 2014).