Organizations have been quick to adopt social channels as a new communication mechanism. But the records aspect of these channels is often ignored. Control over instant messaging (AOL Instant Messenger) was ignored by trading companies fourteen years ago until word got out. But oddly, the problem is still happening today. As new social channels are adopted, organizations have to look at how to manage posts as records. It’s not a question as to if but when a post will become common content for records manger and attorneys.
As many of you long time readers may know, I find myself in a unique world. Being a computer person I should, live in a world of absolutes, one-and-zeros. But I often find myself discussing eDiscovery and most recently social content with attorneys. So as social has emerged in enterprise content, I’ve taken a longer look into what’s happening legally.
Last year, I decided to take some formal training on the subject by attending AIIM’s Social Media Governance training program. Jesse Wilkens developed the material back in 2012. It’s great content and gets students to start to think about social content as records. But one comment was stuck in my mind, the doubt that a post or a Tweet would ever become record. Especially as a tweet is limit of 140 characters. The last year has shown several situations where Facebook posts or Tweets have made their way into the legal or regulatory conversation. Here’s what I’ve seen so far, starting with the latest:
- The Lion’s fan that Tweeted, “You see a green light on any of the bills players just laugh cause it’s me.” Then later after using the pointer Tweeted, “Got Kyle Orton complained to the ref when I got him with the laser.” This resulted in a ban from the stadium. The police used this to issue a citation and he’s ordered to appear in court. It will be interesting to see which case law this creates, confession or evidence.
- The daughter of Hong Kong’s Chief Executive recently posted on Facebook, “… This is actually a beautiful necklace bought at Lane Crawford (yes- funded by all you HK taxpayers!! So are my beautiful shoes and dress and clutches!! Thank you so much!!!!) Actually maybe I shouldn’t say ‘all you’- since most of you here are probably unemployed hence have all this time obsessed with bombarding me with messages.” Some citizens are now looking for him to quit. Granted his daughter is not a government employee but a Pandora’s Box has opened and I’m watching to see what happens next.
- The girl that cost her father $80,000 from a discrimination settlement with her Facebook post, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. …” The District Court of Appeal for the State of Florida agreed that the post had violated the confidentiality of the settlement.
- The PR executive that lost her job for her Tweet before she boarded a flight to South Africa. During her 12-hour flight the Twitter-verse was flooded with response. You would hope that someone that’s supposed to understand public relations would understand what can result from a post.
- Spike Lee, the director, was being sued for negligence when he retweeted an address proclaimed was that of George Zimmerman, who was then accused, later acquitted, of killing an unarmed teen. The address was in fact that of a 70-year old couple. He had already paid the couple $10,000 to release him of any liability.
And there’s more if you dig deeper. Think this is just tied to individuals, I did find one case of corporate litigation in the last year in the news:
- Chobani is being sued for trademark infringement for the post, “@DovSeidman Thanks for inspiring the world to care about “how.” Can you help inspire the food industry, too? How Food is Made Matters #howmatters.” Dov Seidman owns the trademark to certain uses of the word “how.” (believe it or not)
Concepts like liable, slander, and negligence and the enforcement of contracts and agreements all exist in the cyber world no matter what the form. The stories so far seem to say that it is we individuals that need to think before we post. Corporations seem to be doing a good job of controlling what they post. But organizations need to remember what is tweeted or posted on Facebook should not only be controlled but maintained as a recorded, no matter which social media platform is being used.
Thanks for the kind words. I’d have to go back and look at the specific context and examples but I know that whenever I talk about social media today I am careful to note first that “record-ness” is dependent on context, not format. I think there are many examples of where Tweets would not be records because they are duplicative, or difficult to categorize as such without the context of other tweets, much in the way IMs and SMS messages can be difficult absent context.
I also note that whether something is technically a record or not is often not terribly relevant to whether it can be evidence and required to be produced for litigation, audits, and so forth. Most of the examples you cite above wouldn’t be records in the traditional sense but they’d sure be fodder for legal cases and of course PR ones as well.
In short I certainly think that social content can be records – and that even when it isn’t it needs to be managed appropriately. That was the impetus for the course and has been the focus of most of my presentations since then. The old New York Times rule for email – don’t send something you wouldn’t want posted on the front page of the NYT – certainly applies to social media.
All the best,
Thanks for the comment. The training you developed absolutely gets the point across that Social Content is record content. That is what got me to watch for these short posts that cause a BIG stir. I hear from organizations and individuals that tweets don’t matter. As you say, these short posts can be difficult to categorize as record content because context is often necessary.
That’s certainly the case with the Chobani situation where you need to really look hard to see the plaintiff’s point. Very little would indicate that it should ever be retained as a record. But the plaintiff built the context.
Another case in point may be this very article on a social channel. My intent was to re-enforce what I learned by showing some current scenarios that show how short messages can become part of the legal conversation. I certainly didn’t not mean to imply that you do not believe that social content could not be record. When I in fact know that you believe that all social channels can create content than can be classified as a record.