The latest high-tech crime fighting tool for the La Crosse, Wisconsin police department is Facebook according to the “La Crosse Tribune.” The department recently used pictures from Facebook to charge students from the University of Wisconsin — La Crosse aged 19 and 20 for underage drinking. I guess La Crosse is a quiet town without a lot of serious crime so the police have lots of time to go looking for trouble. Tax authorities in the U.S. and Belgium have also used Facebook in their investigations. Just more proof that what you do online does matter.
Texas lawyer, Jeff Rasansky, gives some sound advice on managing your social networking in the event that you become involved in a lawsuit. Although written in the context of his personal injury practice, this advice pertains to any lawsuit. If you’ve read some of my other posts, you already know that your online image can affect your case, including even a landlord/tenant case. An opposing lawyer or client can find out more about you in 2 minutes for free than thousands of dollars and hours of private investigator time would have revealed just a few years ago. Right now Casey Anthony’s online trail is playing a major role in the investigation into her daughter’s murder as well as influencing any potential juror pool.
Of course, my preference would be for you to properly manage your online image to create a positive impression of yourself from the beginning, as I describe here in “MySpace Can Help Your ‘Case’ Too.” However, if all else fails and you find yourself embroiled in a lawsuit, Mr. Rasansky offers some good advice for how to manage your online postings. Step one is no matter what kind of case you’re involved in, let your lawyer know if you maintain any social networking sites or any personal websites. Step two is to Google yourself and see what comes up. Other people may have posted things about you that you are not aware of. Step three is to adjust privacy settings as necessary, delete as necessary, and quit posting or control your posting to create a positive image.
I’ve written before about the dangers of online postings. A little self censorship is a good idea. Now it seems that your Facebook status can get you out of jury duty too. All one juror had to do is set his Facebook status as: “Barry Price is sitting in hell … aka jury duty.” It seems that a paralegal for the plaintiff’s attorney in the multi-million dollar lawsuit for which Mr. Price was a potential juror was checking the Facebook pages of the jurors. He complained to the judge and it was buh-bye Barry. I’m not sure that should have been enough to get him excused for cause, but it was a high stakes, high profile case.
A juror in England, however, engaged in some egregiously improper conduct. Jurors are forbidden from discussing cases outside of court while the trial is going on. In fact, they cannot even discuss it among themselves until all the evidence is presented. They are supposed to base their verdicts solely on the evidence presented and to not consider outside factors or influences. They are not allowed to view any news about the trial if it is in the papers or on television. So what does she do? She posts details of the criminal sex abuse case online and then polls her Facebook Friends for their opinions. She was, of course, dismissed from the case when her misconduct was discovered. She was lucky not to have been held in contempt of court.
I promise to quit beating a dead horse and yet another example of the dangers of improperly managing your online persona pops up. It seems that medical students at the University of Florida don’t know any better than to announce they belong to the “I Hate Medical School” group or to pose in lab coats labeled “Kevorkian Medical Clinic” online. As a graduate of the FSU College of Law, I’d love to turn this into a “Gator hater” joke, but I doubt that students in any other graduate program anywhere would fare any better.
I’m not saying that you need to stay offline or avoid social networks. I’m just saying you need to be aware of what you’re doing and saying. Don’t do anything that you wouldn’t do at noon in the middle of Times Square on a busy Sunday. Ask yourself “How would I feel if my ____________________ (fill in blank with Mom, Dad, boss, future employer, minister, teacher etc.) saw this?” If the answer is “embarassed”, then don’t do it online.
Joshua Lipton apparently doesn’t read this blog. He’s also seems to be an unrepentant, partying roadway menace. Young Mr. Lipton was involved in a drunk driving crash that seriously injured a woman. So, what was he doing two weeks later while she was recovering in a hospital? Leading a sober life of regret and contrition, right? Heck no! He was out whoopin’ it up at a Halloween party dressed in a black and white striped shirt and wearing an orange jumpsuit labeled “Jail Bird.” As we used to say when I was that age — “Smooth move, Ex-Lax!”
Naturally, the picture on the left ended up on Facebook. The articles I’ve read say that “someone” posted the pictures on Facebook so maybe Mr. Lipton didn’t post them himself, but it really doesn’t matter. The enterprising prosecutor in his case, Jay Sullivan, found the pictures online. (Kudos Mr. Sullivan!) He showed them to the judge at Mr. Lipton’s sentencing and used them to argue that Mr. Lipton was a remorseless partier. Wow! If you’re a prosecutor it just can’t get any better than that! Actual photographic evidence of a complete lack of remorse and repentance! It must have impressed the judge who pronounced the photographs “depraved” and sentenced Mr. Lipton to two years in jail. OUCH! Bet he’ll learn his lesson now.
Of course, Mr. Lipton isn’t alone. I’ve even detailed an example involving a client of mine where her MySpace page hurt her PI case. A USA Today article gives several examples of others who have been damaged by their MySpace pages and have in some cases garnered longer sentences, or jail time instead of probation.
My first suggestion is that if you’ve seriously injured another human being try some decency. Instead of making light of what you’ve done and the consequences, try a little contrition. Quit drinking and if you can’t, get help. If you can’t be a decent person then, as a lawyer, I recommend that you at least be a smart person. Don’t make light of the serious injuries you’ve caused to another and the possible consequences. Don’t let pictures be taken of you being a jerk or with any alcohol in your posession or around you. And for Heaven’s sake make sure no pictures are taken that can end up online!
I’m picking on MySpace because it is the biggest social network and was involved in both of my cases. Everything I say here is equally applicable to Facebook, Flickr, Twitter, LinkedIn, and anything that you publish online or that is published about you online. You don’t have to be a blogger or into social networking to get mentioned online. I’m using the word “case” in the broad non-legal sense of the word as in stating your case to an employer, a friend, or the public at large.
Even innocent things may harm you. At least one prospective school teacher was allegedly denied her teaching degree due to her online activities. You may be a kind, considerate, thoughtful person, who excels in school, but if all you post are party pictures, then you may be giving the public the false impression that you’re a hard drinking, hard partying, ne’er do well. You need to post pictures and comments about your charity work, study habits, and service as the designated driver. In other words, you need to make sure your public image is an accurate view of the well rounded complex person that you are. All it allegedly took in that one case was a single “drunken pirate” picture. So maybe the best policy is no “drunken” pictures at all. If you’re not complex and well rounded, but want to be employed — fake it!
If you’re in business or politics, you have to be careful not to offend. If you live in “red America” you don’t want to advertise your undying appreciation of all things Obama or Clinton. Likewise, if you live in New York City or San Francisco, you don’t want to advertise that you are president of the George Bush Fan Club. If you’re a small town mayor, you may not want to post pictures of yourself in lingerie posed on the town’s fire truck (no matter how good you look in lingerie.) I have a personal blog and I think twice about anything I put there just like I think twice about every tweet.
Before you post anything online, you might want to ask yourself some questions like:
- Will I still be happy with this in five, ten, or fifteen years?
People mature and change over time. I read an advice column in WIRED magazine recently where an employer expressed doubt over hiring someone several years out of school because of their partying image on Facebook. The wise answer was to cut the kid some slack. If you’d had Facebook in college, could you have passed that test?
- Would I want my mother, father, child, student, Sunday school class, significant other, spouse, co-worker, or employer to see or read this? (This goes for both current and future members of these categories.)
You may not be married yet, you may not have children yet, but you may someday. When you do, would you want them to find what you’ve posted? Will some future boss quietly not hire you because of something he finds out about you online? Remember employers, insurance adjusters, opposing counsel, police, school administrators and others can and will look you up online.
- Am I giving a false impression of myself?
Could I give a more balanced impression of myself if I post pictures of me helping out at the soup kitchen or tutoring kids next to the pictures of my last drunken party?
I had a friend who was involved in local politics long before the Internet. Any time he posed for a picture he made sure his hands were empty and his tie was tightened or off. He believed any time you see a picture of someone holding a drink at a party that you assume that they’re drunk or getting drunk even if they’re drinking club soda or water. His tie was always tight for the same reason. A loose tie makes you look like a lush. I still remember his advice when I pose for a picture. It was good advice then, and it is better advice now. By the way, if you’re undressed, or half dressed and anyone takes out a camera — run! And don’t ever email anyone a digital photo you wouldn’t want the entire world to see. Enough of these kinds of photos have found their way to the web without the subject’s permission that one Congressman thinks there ought to be a law.
If you manage your online image from the beginning, you won’t have to hire someone to clean it up for you later. Google your own name periodically, especially if you are interviewing for a job, are involved in a lawsuit, or have applied for anything that might involve investigating your background. If you find any dirt, don’t despair! You can clean it up. For a few dollars a year, you can register your own name as a domain and set up a webpage about yourself. If you post regularly, this will help keep a positive image of you at the top of the search engines. Just because you’re paranoid doesn’t mean you’re not being Googled! Seriously, get your online house in order, keep it in order, and social media can be your friend presenting a positive online image for you to prospective clients, employers, mates, and others. Now get out there and Google. Good luck!
MySpace recently played a role in two cases, which is a sign of the growing ubiquity of social networks. The two cases highlight the importance of managing the image you portray via MySpace, Facebook, Flickr, Twitter, or whatever.
In the first case, my client was a landlord evicting a commercial tenant who ran what was supposed to be a restaurant. That is, the tenant’s lease specifically said that the space was being leased to him as a restaurant. It also required the tenant to operate lawfully and in accordance with all local and state rules, regulations, and ordnances. Leases commonly describe the purposes the property is leased for and require the tenant to comply with the law.
The tenant had a MySpace page promoting his business that we were able to use at trial to show he was operating a bar and that he was not complying with local ordinances and state laws. The over all look of the page and the comments on it demonstrated that a bar was being promoted rather than a restaurant. The numerous pictures showed young people partying and dancing on the bar. There were no pictures of the dining area that we contended was not being used. None of the pictures showed any food being served or consumed. Alcohol was evident in every picture, but not food. Florida state law prohibits smoking in restaurants or in any indoor area except bars that serve little or no food. Several pictures showed people smoking inside. Drinking outside and within parking areas is prohibited, but numerous pictures showed people hanging out in front of the bar drinking. They also showed that tables and chairs had been placed outside for this purpose. Local ordinances prohibit anyone from displaying their “anal cleavage” in an establishment that serves alcohol. This is, of course, designed to prohibit strip clubs. Several pictures showed bikini clad girls dancing on the bar and at least one of them was clearly wearing a thong. Guess what her thong allowed her to display? Just to make it better, she held a beer and a lit cigarette in one hand while she danced. The tenant’s own MySpace page made our case for us.
The second case is my last remaining personal injury case. The week after I tried the eviction case in court I spoke with an insurance adjuster who suggested that I take a look at my client’s “interesting” MySpace page. This particular client had a leg injury. Under “Interests”, she had listed “learning to surf.”
It could have been much worse. Fortunately, none of the pictures showed her dancing on her hurt leg, water skiing, snow skiing, or anything else that would allow the other side to contend that her leg wasn’t really hurt. Perhaps because her leg really was hurt? The adjuster particularly liked the comment about “learning to surf.” I pointed out to the adjuster that she was interested in “learning” not in surfing. Obviously, she didn’t surf and saying you’d like to learn could be a good way to meet cute surfer guys.
The adjuster advised me that he and the other adjusters now commonly “Google” every claimant and look for them on MySpace. Young people in particular often have these pages and they also tend to be very indiscreet about their postings. It has hurt the employment chances of many a young person as well.
Next, I’ll discuss some of the ways social networks could be used against you and how you can use them to enhance and improve your image. I won’t be talking specifically about these cases and will be talking generally.