Why We Need Ethics Policies and Guidelines
Before I discuss the Federal Trade Commission guidelines on disclosure and share how to create a social media ethics policy, it is important to review some of the mistakes people and businesses have made to fully understand the scope of the problem.
Sharlyn Lauby (2012) wrote an interesting article in American Express Open Forum about this very topic. She poses the following interesting questions we should all be asking ourselves:
“Both ethics and social media are important in the workplace, so the question becomes: What is the best way to manage them? Should they be treated as two distinct conversations? Or should ethics be addressed in social media policies?” (Lauby 2012)
Kristen Fyfe, senior communications manager at the Training and Development Association (ASTD), points out the component that both ethics and social media must have in common to be successful “Clarity is the most effective element for both ethics and social media policies, “Companies that have not incorporated behavior expectations into their employee handbooks should make that a top priority.” (Lauby 2012)
It’s about setting clear expectations for your employees, volunteers, board members, and vendors.
“If you identify yourself as a member of a company or organization, you are always on stage. Act like it. How you respond online will have as much or more resonance than in person, so either be on your best behavior or don’t act as a brand advocate.” (Lauby 2012)
Here is a question for you to think about: Do you think it is ethical for employers to consider what you have posted on your social media accounts in the hiring process?
I ask this because more employers are now using social media profiles in the hiring process.
“According to a survey from CareerBuilder, more than half of all employers (51-percent) who use social media for background information on potential employees are finding things that cause them to NOT hire the candidate.” (TLNT.com 2014)
So, just what was it that employers are finding on social media sites that makes them decide to pass on a job candidate? CareerBuilder listed the most common ones:
• Job candidate posted provocative or inappropriate photographs or information—46 percent
• Job candidate posted information about them drinking or using drugs—41percent
• Job candidates bad-mouthed their previous company or fellow employee—36 percent
• Job candidate showed poor communication skills—32 percent
• Job candidate posted discriminatory comments related to race, gender, religion, and others—28 percent
• Job candidate lied about qualifications—25 percent
• Job candidate shared confidential information from previous employers—24 percent
• Job candidate was linked to criminal behavior—22 percent
• Job candidate’s screen name was unprofessional—21percent
• Job candidate lied about an absence—13 percent (TLNT.com 2014)
There is a downside to using social media posts in the screening process for job applicants.
It is perceived as sneaky. People change and grow. A comment posted to an article last year may or may not reflect the person’s attitude this year. You might learn things you really do not want to know such as age, religious affiliation, marital status, medical history, caregiving status, and so on. (Spraggins 2014)
Will Stoughton, a doctoral student in industrial psychology and lead author on a study about how job candidates perceive employers who snoop at work is quoted as saying, “The practice may have serious repercussions for the hiring organization’s reputation and make applicants more inclined to resort to litigation.” That is because job seekers view online searches as an invasion of privacy. But perhaps the most compelling reason to not view online profiles is that whatever the employer finds may not be predictive of an individual’s job performance. (Spraggins 2014)
Some insurance companies are also using social media posts, which raises the question once again: Is it ethical to use our posts in determining insurance rates? To be fair, insurance companies are not big, bad meanies who are out to prevent people from getting insurance or to gouge a policyholder with high rates. Instead, they are working to lessen their risk. Nevertheless, does our private life have any bearing on what we should be charged by insurance companies?
Underwriters are looking for things making you higher risk, noting possible habits you seem to enjoy, as well as your medical history. For example, smoking, drinking, or even leading a sedentary lifestyle makes you more vulnerable to serious health issues. Case in point—the classic “smoker question.” If you check “no” to being a smoker on your life insurance application, but yet you have a cigarette in your hand in every photo of you online, and you “Like” and “Follow” the Marlboro Man, it is a safe bet that one, you are a smoker, and/or two, you are either still doing or have done considerable damage to your body and increased your risks of cancer and heart disease. Health insurers may deny benefits completely, deny claims, or even cancel coverage mid-policy (insurancequotes.org 2014).
Sometimes what people share via social media stops things from even getting too far. Consider the case of Jacob Cox-Brown from Astoria, Oregon. Police were perplexed on January 1, 2013, as to who may have sideswiped two cars during the night. It did not take long to figure it out. A message was sent to an officer with Cox-Brown’s status update: “Drivin drunk. . . classic but to whoever’s vehicle I hit I am sorry. :P” After police arrived at his house and matched the damage to his car, Cox-Brown was arrested.
Cox-Brown now claims it was all “a big joke.” To insurance companies though, this type of situation is no laughing matter. Had Cox-Brown not given himself away, he could have easily submitted a hit and run claim with his insurance company and possibly received benefits—which would have been a fraudulent claim. (insurancequotes.org 2014)
In addition to higher premiums, there are denied claims. In Canada, 29-year-old Natalie Blanchard was denied health benefits due to her Facebook posts. She was on long-term sick leave from her company due to major depression when her benefits were abruptly cut off. She called the insurer, Manulife, to question the stop payment. The insurance company informed her that since she had recently posted pictures of herself seemingly having good times at the bar, and sunning on the beach, she evidently was not depressed. Blanchard argued that she was going out on doctor’s orders, in an attempt to “forget her problems.” Maybe if her doctor had diagnosed her with seasonal affective disorder, it would have been another story—and, if her prescription had included bikinis and tall fruity drinks. Although Manulife made no comment on the specific incident, it positively confirmed that they, and other insurers, use social media to investigate clients. The company did say, “We would not deny or terminate a valid claim solely based on information published on websites such as Facebook.” (insurancequotes.org 2014)
One group of workers that is always on stage is physicians. We hold them in high respect and count on them to uphold the highest ethics.
For physicians and for patients, the issue of relationships can be challenged by social media. Physicians want meaningful, professional relationships with patients. Patients want to know about their physicians and have trusting relationships with them. Enter social media. Doctors now face questions about how to use social media platforms such as Facebook and Twitter, even for their own private use.
Kevin O’Reilly addressed this issue head-on in an article published on amednews.com (American Medical News 2010), saying, “there is little professional guidance to help physicians navigate connections with patients on Facebook, Twitter and other sites. Some hospitals and medical schools have policies to direct physicians, medical students and other health professionals on how to use social media properly, but formal ethical guidance to help physicians maintain professional standards online is scarce. Doctors are largely on their own to devise rules on how to maintain appropriate boundaries with patients on social media.” (American Medical News 2010)
The American College of Physicians’ Center for Ethics and Professionalism is collaborating with the organization’s Council of Associates, which represents more than 19,000 internal medicine residents and fellows, to formulate a social media policy to include in a revised ethics manual (American Medical News 2010).
Over sharing?
Some doctors in training, have been guilty of over sharing. More than 60 percent of U.S. medical schools reported incidents of students posting unprofessional content such as photos showing inebriation or illegal drug use, or posts featuring vulgar language, according to a study in September 23/30, 2009, Journal of the American Medical Association (JAMA). Experts said such online disclosures can undermine patients’ trust, and a physician’s obligation to never violate patients’ privacy continues to be paramount online.
However, subtler dilemmas such as whether to accept patients’ Facebook friend requests are more common, because physicians see an opportunity to use social media to advance their patients’ health. (American Medical News 2010)
At the same time, medical boards are now monitoring physician use of social media platforms (American Medical Association 2013).
When doctors go to social media websites, they may want to think twice about posting patients’ photos without permission. Using the images could be considered unprofessional conduct by a state medical board, according to a new study. Other online physician behavior viewed as troublesome by boards: citing misleading information about clinical outcomes; misrepresenting credentials; and inappropriately contacting patients. (AMA 2014)
A survey of 48 state medical board executives, published in the Annals of Internal Medicine, found that these social media activities likely would prompt a board investigation of a doctor. The study concluded that physicians should never engage in such behaviors. “People can really do a lot to stay out of trouble by applying common sense and avoiding the trap that you can do something online you wouldn’t do in real life,” said study lead author Ryan Greysen, MD, MHS. He is an assistant professor in the Division of Hospital Medicine at the University of California, San Francisco, School of Medicine (AMA 2013).
Previous research has shown that doctors and medical students can get in trouble online. An article cowritten by Dr. Greysen in the March 21, 2012, issue of JAMA found that 71 percent of state medical boards had investigated doctors for violating professionalism online. A study, also cowritten by Dr. Greysen, on September 23, 2009, issue of JAMA said 60 percent of medical schools had incidents of students posting unprofessional content online. (AMA 2013)
You Are What You Post: No Hiding from Fraud
We live in a world where many people share things they should not, from embarrassing photos to fraudulent behavior. Yes, I said fraud. And these posts are now the fraud investigator’s best friend.
James Quiggle, Coalition against Insurance Fraud says, “Mining social media for clues is one of the fastest-growing areas of insurance-fraud investigation. For example, worker’s compensation investigators might find that a supposedly injured employee is bragging about hang gliding and is posting action photos on Facebook.” (Goldmann 2012)
According to Jaclyn S. Millner, an attorney at Fitch, Johnson, Larson & Held, P.A. and Gregory M. Duhl, Associate Professor of Law at the William Mitchell College of Law in St. Paul, Minnesota, there is nothing unethical or illegal about a defense attorney or an agent of the attorney, such as a company representative or investigator, accessing a fraud suspect’s information and photographs that are stored on a social networking site and are not protected with privacy settings preventing public access. In that sense, according to the Millner and Duhl—who have researched and written extensively on the topic—searching for public information on a social networking site is no different than video surveillance in any public location that defense counsel may authorize in a fraud investigation (Goldmann 2012).
Deception Matters
States differ on whether lawyers and their agents, including investigators and other company representatives, can engage in deception in investigations under the supervision of an attorney. In some states, for example, deceptive practices could technically include “friending” a fraud suspect under a false name or account in order to gain access to his or her private social networking account (Goldmann 2012).
Teachers and Social Media: Crossing the Line?
Teachers spend their lives dedicated to students, working long hours, frequently for much lower pay than they might earn in other positions. With such an educated group, ethical questions arise:
1. Should teachers allow “friending” by students?
2. They must be mindful about posting comments about their peers, students, schools, and/or the education system.
3. They must not “vent” about their frustrations in the classrooms in online forums.
Unfortunately, that hasn’t stopped some teachers from crossing the line.
The following should be lessons to be learned. They come from jobs.aol.com:
Think You’re Hot? Don’t Tweet It!
I have been amazed at how some people, even in some of the most responsible positions, have made egregious errors of judgment when it comes to what they post on social media. From politicians to business people to teachers, it’s critical to “think before you tweet.” I share these stories to help remind you to share them with friends and family. Be a coach, be a mentor, help others avoid the mistakes these people made.
A 23-year-old high school math teacher in Aurora, Colorado, had a perfectly nice job until her superiors got wind of racy tweets. They included topless and other revealing self-portraits and messages like “stay sexy . . . stay high . . . stay drunk,” to say nothing of referring to a student as “jail bait” or saying that she was high while grading papers. The teacher claimed that the Twitter account was a parody that she set up with friends. Students rallied to her defense. School administrators were not laughing when they first put her on paid administrative leave and then fired her. (Sherman 2013)
Keep Your Side Career off Facebook
Having active outside interests helps teachers relax and stay in fine form. In the case of a part-time bikini model who taught English at a high school in Florida, it was literally true. One day, the principal called her into his office, showed some of her posing work on a computer screen, and asked if it was her. She said yes and he said good-bye (Sherman 2013).
Don’t Post Jokes About Wishing Your Students Would Drown
Teaching grade school can be challenging. But calling your fifth-grade students “devils spawn” that you would like to bring to the beach—the day after a sixth grader in Harlem had drowned in the ocean on a school outing—is completely inappropriate. That is what one teacher did in 2010, posting the rant on Facebook and then trying to cover up when officials heard about the vent. She was fired, although finally won a court battle to be reinstated. However, the 2-year suspension without pay was upheld, meaning her financial life likely remains underwater (Sherman 2013).
Don’t Post Photos of Your Students’ Mouths Covered with Duct Tape
A middle school math teacher at a Community Learning Center in Ohio, thought posting a picture to Facebook of 16 students with duct tape on their mouths and a caption of “Finally found a way to keep them quiet!!!” was funny, particularly as she claims that the students had put the tape on themselves as a joke. She eventually realized that the post was a “huge mistake.” Neither was the local board of education when it fired her (Sherman 2013).
Don’t Advise Students in A Religious Education Class to Sleep Around
Just to show that not all online nuttiness by teachers is restricted to the United States, a religious education teacher in England, allegedly told students to “sleep around” before marriage, swore in the classroom, and described some of her personal experiences concerning sex. And then, after a parents’ night, she supposedly posted on Facebook, “That was the most ****** horrendous evening of my life.” The 27-year-old reportedly was banned from classrooms for 5 years. (Sherman 2013)
What is missing? Social media polices that help teachers (and others) understand what is appropriate and inappropriate use of social media.
Who else needs to have a social media policy? Maybe sports franchises? Ayesha Curry, wife of Stephen Curry of the Golden State Warriors, took to Twitter June 16, 2016, after her husband was ejected from Game 6 for throwing his mouthpiece, which hit one of the Cavaliers’ minority owners’ sons. “I’ve lost all respect sorry this is absolutely rigged for money … Or ratings [I’m] not sure which. I won’t be silent.” She later deleted the tweet, which was mocked on social media. (usmagazine.com 2016)
Gross, Disgusting, and What? No Social Media Policy?
You would think after so many videos and pictures have surfaced that frustrated employees of fast food restaurants would stop venting on social media, but you would be wrong. From restaurant workers to airline employees to others, some people think they can record unethical behavior on video or images, post it, and nothing will happen.
An image was shared on social media (Broderick 2013) of a Taco Bell employee licking a stack of taco shells.
A Denver math teacher tweets about her hot students and how she likes to smoke weed. Her students thought her racy photos and tweets about marijuana and club music were pretty cool, though, and protested online to get her back. She was fired in the end.
Former California Pizza Kitchen server and social media butterfly “Timothy DeLaGhetto” claimed he was fired for tweeting about how he did not like the company’s new uniforms. As he explained in a since-deleted tweet to its corporate Twitter account, “black button ups are the lamest s--t ever!!!” (Broderick 2013)
“Cisco Fatty” Takes On Twitter
You may also recall the case of a man who has come to be called “Cisco Fatty” after a social media mistake. After interviewing at Cisco Systems, even before starting his new job, this guy tweeted: “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”
“A channel partner advocate for Cisco Alert found the tweet and replied: “Who is the hiring manager. I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the web.” This unfortunate incident led to the man becoming known as “Cisco Fatty.” What a reputation! (Huhman 2013)
What is missing? Social media polices that help people understand what is appropriate and inappropriate use of social media.
Facebook Posts Tied to College Admissions?
While more than 80 percent of colleges use Facebook to recruit students, according to a Kaplan survey of college admissions officers, roughly a quarter of admissions officers are also stopping to check out the profiles of prospective students. Although this does not necessarily mean that Facebook and other online profiles will be considered in making admissions decisions, AllFacebook reports that at least one Harvard admissions officer—who posted on a Quora thread in response to the question “Do high school students’ Facebook profiles affect their college applications?”—said that a student’s online presence “absolutely” prejudices her.” (HuffingtonPost.com 2011)
Over-sharing or deciding whether your profile on social media compromises your professionalism is just one part of this complicated issue. There are other aspects of ethics that happen when you pay someone to blog for you.
Ghost Blogging
According to Blogossary, a ghost blog is a blog written and managed by an anonymous author(s). A ghost blog can also be a blog written by a person or company on behalf of another company or person (ethicsinpr.wikispaces.com n.d.).
According to opponents of ghost blogging, these practices constitute bloggers’ ethics. Blogs that do not follow these practices are therefore unethical and threaten the integrity of the medium. Those that are in favor of ghost blogging are adamant that the practice can be beneficial to both the company as well as the public as long as the writer and the corporation are sharing the same viewpoints and values. Another argument in favor of ghost blogging mentions the fact that public relations practitioners have always written speeches and news reports for others, so there should not be much difference between those practices and corporate ghost blogging. One of the main arguments against ghost blogging is the lack of transparency it provides for its audiences. Blogs are meant to add a human touch to an organization, so they should be constructed by someone who is situated within the corporation. A second argument against ghost blogging relates to the idea that social media is centered on creating connections between the writers and their audiences, a practice that does not generally account for any third-party mediation (ethicsinpr.wikispaces.com n.d.).
Courtrooms, Cases, and Social Media
Today, everyone from prosecutors, to defense attorneys, to people involved in cases are also engaging in social media practices, bringing into question whether social media policies are needed.
The extent of the problem goes beyond those in the legal profession. Even the families of both defendants and victims are now creating Facebook pages about cases; gang members have taken to social media in an attempt to menace witnesses; and journalists are tweeting and texting from courtrooms during trials. The use of social media in court is becoming increasingly prevalent (BWGlaw.net 2014).
Courts around the country are working hard to update their policies on using social media in the courtroom. A Tucson attorney and jury consultant, Rosalind Greene, writes about the usage of social media in the courtroom. She recently discussed a study that found that, between 1999 and 2010, at least 90 verdicts were appealed across the country because of Internet or social media gaffes, 28 of those were overturned, and half of those appeals happened in 2009 and 2010 (BWGlaw.net 2014).
Researchers monitoring Twitter found that people who identified themselves as prospective or sitting jurors tweeted every three minutes (BWGlaw.net 2014).
In Britain, a juror took to social media to ask if she should find a defendant guilty or not guilty.
A mistrial was declared after five members of a Baltimore jury “friended” each other on Facebook during a political corruption trial and discussed the case online.
A judge in New York State was disciplined for becoming “friends” with lawyers on social media.
A federal judge in New Jersey had doubts about the testimony of a witness, so she went on Facebook to check out that witness.
A Michigan juror posted an inappropriate post to her Facebook page, which read: “Gonna be fun to tell the defendant they’re GUILTY.” (BWGlaw.net 2014)
Social Media Posts Admissible in Court
Yes, and in divorce cases too!
A survey from Lawyers.com shows that only 46 percent of Facebook users realize their posts can be used as legal evidence. Users of other social media sites were even less aware; 44 percent of YouTube users, 38 percent of Twitter users, 32 percent of Instagram users, and 25 percent of Vine users understood that their activity can come back to bite them. The survey results show that users under 24 are about twice as likely to be aware that their posts can be used against them as users who are 55 or older. Users with lower household incomes and educational levels were also less likely to expect their online lives to come up in court than their wealthier, degree-holding counterparts. (Crank 2013)
What You Say On Facebook Can Be Used Against You in A Court of Law
Whether it is a divorce proceeding or criminal trial, posts on social networking sites such as Facebook, MySpace, Twitter, and Skype are regularly popping up as evidence in courtrooms locally and across the country (Callahan 2012).
Ian Friedman, past president of the Ohio Association of Criminal Defense Attorneys said, “I personally have been involved in several trials where credibility was completely lost in a matter of seconds when the witness was presented with something inconsistent they had written in the past.” (Callahan 2012)
The Internet website Forensic Focus posted a study by a lawyer who pulled up almost 700 appeals cases, nationwide, where social media was at least part of the disagreement over a trial court outcome. John Patzakis, the study’s author, wrote the cases he was able to locate are likely just the tip of the iceberg—since only a small percentage of all appellate decisions are published online. And he estimates “several, if not tens of thousands,” of cases involving social media are out there. That fact worries Ohio Supreme Court Justice Judith Lanzinger, who once said courts are in the “wild, wild west” in terms of dealing with new technology. Lanzinger said the court needs to find ways to deal with emerging technology, particularly with the ability to doctor photos and create fake accounts on some social networking platforms (Callahan 2012).
Child Custody, Family Court, Social Media, and Ethics
Over the last few years, we have seen more social media sites used in family law cases, which brings into question whether there should be ethics policies regarding the use of this content. Should it be kept private or is it evidence being used for the welfare of children?
How can social media content be used in this context? Posts may be used as evidence to demonstrate a person’s spending habits, behavior, personal relationships, purchases made, job skills, partying, anger issues, use of alcohol or drugs, and so on.
The experts at Maley Investigations and Detective Agency in Libertyville, Illinois point out that, “A major aspect of a child custody dispute is the safety of the child and a parent’s lifestyle affects the child’s well-being. How you conduct yourself on social media websites can hurt your case. The best thing you can do if you are in the middle of a nasty custody battle is refrain from using social media websites entirely. If you post any material that is questionable, then rest assured your ex-spouse will retrieve it and try to use it against you in court.” (maleyinvestigations.com 2014)
Here are some real-life scenarios that were used against a person in a divorce/child custody case: (maleyinvestigations.com 2014)
1. The husband joined Match.com and declared he was single and childless, while he was seeking primary custody of his children.
2. A husband denied he had any anger management issues, but still posted on Facebook, “If you have the balls to get in my face, I’ll kick your ass into submission.”
3. A wife was fighting for custody of her children while evidence surfaced from the gaming site “World of Warcraft” tracked her online and chatting with her boyfriend at the precise time she claimed to be out with her children.
4. A mother denied in court that she smoked marijuana, but posted pictures on Facebook of her smoking marijuana.
5. A soon-to-be ex-husband claimed he was unemployed, and he was receiving temporary alimony payments from his wife. However, on Facebook, the unemployed man described himself as a business owner and he also wrote details about trips to Las Vegas, South America, and to Sea World, all taken with his new girlfriend. At the divorce trial, the judge denied the husband’s request to receive any type of alimony.
6. A father claimed he could not afford to pay any type of child support. However, his online postings showed off photographs of him sitting in a Ferrari, taking a cruise, and selling land that he owned.
Should Jurors Have a Social Media Ethics Policy?
Some of the cases have been under the radar but others have been high profile.
During the 2009 trial of former Pennsylvania State Sen. Vincent Fumo, a television station covering the trial discovered that one of the jurors had repeatedly posted about the case on Facebook and Twitter (Hall 2014).
Other issues?
A post announcing that a person was selected for a jury, or complaining that he or she will miss a week of work can invite a response that might subtly influence a juror’s view of the case (Hall 2014).
Example Post: “Jury duty 2morrow. I may get 2 hang someone . . . can’t wait.” (The juror, who was not identified, posted on his Facebook wall (Hall 2014).
The potential for social media to influence a juror is significant, says criminal defense attorney Gerald Grimaud, a member of the Civil and Equal Rights Committee of the Pennsylvania Bar Association (Hall 2014).
The Bottom Line
Anything that you post to a social media account may be used against you in court. In August 2012, U.S. District Judge William Pauley III ruled that posts on Facebook are admissible in court, even if your profile is not public. If you have a high privacy setting, your social media posts may be admissible in court if one of your “friends” shares them with government officials or the court (drewcochranlaw.com 2014).
In addition, “When you post a comment on someone else’s social media profile page, or “wall,” that results in damages, a judge may find you liable. For example, if a woman gets hired to work as a nanny for the summer and a vengeful ex-friend posts a harmful lie on the woman’s social media wall that results in her getting fired, a judge may order the ex-friend to pay the would-be nanny the amount of money that she would have earned during the summer. At the same time, the ex-friend may have to admit to her malintent or the parent may have to testify that the post influenced the hiring decision (drewcochranlaw.com 2014).
Regardless of the platform, social media is never private. There is always a way to access posts, even if you think you have deleted content from your profile. The best way to prevent having your social media posts used against you in court is to post comments and pictures that do not compromise your integrity. In addition, you can keep others from posting pictures or messages about you by changing your privacy settings. Instead of deleting posts from your social media accounts during legal proceedings, talk to your lawyer about the best way to do damage control legally (drewcochranlaw.com 2014).
In this chapter, we have seen a myriad of examples of unethical behavior. It is important to understand the scope of this behavior to better understand why social media ethics policies are needed.
We have also seen how some businesses and organizations, from insurance companies to higher education, are now looking at social media posts and using content as criteria for acceptance. The question is whether you consider this to be ethical.