This incredible story begins in Edmonton when a veteran worker began posting to Facebook about their direct management. Sometimes while on the job and sometimes from home.The statements were 'offensive' according to some sources. The employee may or may not have known but all of their posts were public based on their profile settings at the time.
The posts referred to one of the supervisors as "evil," a "bitch," a "hag," "C_unt" and "the devil". The other supervisor was characterized as a "yes man" and an "idiot". The posts also contained threatening language such as "DIE BITCH DIE" and "WRONG AGAIN BITCH you gonna be the one missing PERMANENTLY" - Field Law's Workwise Newsletter.Around the same time... beginning in June of 2009 Facebook started experimenting with changes to the site that were altering user's privacy settings and started new users with 'open' profiles by default:
- The Day Facebook Changed Forever: Messages to Become Public By Default -ReadWriteWeb, June 24th, 2009.
- More Ways to Share in the Publisher -Facebook Blog, June 24th, 2009.
- Facebook Privacy Changes Go Live; Beware of "Everyone" -PCWorld.com December 9th, 2009.
Around this time I began working at BCIT and was appearing in the media speaking about the barefoot bandit, political social media gaffes and social media charlatans. I had also been lucky enough to develop courses at BCIT. These things and a strong LinkedIn profile along with an honest and transparent online persona spurred a law firm in Edmonton to reach out to me.
The conversation was interesting to say the least. The information communicated to me demonstrated that the need for individuals with the knowledge and skills to discover information about social networks in these types of cases is large and growing. Young lawyers may have used Facebook or Twitter since they were teenagers but they don't necessary understand these networks in enough detail to be of assistance in these detail orientated cases.
The work was around what's called an agreed upon 'Statement of Facts' that both the griever and the defendant agree to. I was tasked with analyzing and creating an accurate statement about the state of Facebook at the time of the incident. If the grievor challenged any items in the Statement of Facts I would be required to take the stand as an expert witness. This was an interesting position to be in. The other lawyer would be challenging me as an expert in the field while I was on the stand. The grievor eventual agreed to the 'Statement of Facts' and I wasn't required to testify.
I'd love to talk more about my opinion on the case and the circumstances surrounding it but I am unable to comment on the specifics of the case at this time as the decision may be subject to a judicial review(an appeal). It is therefore not appropriate to publicly provide my opinion on the outcome of the decision. Although I can share with you the case study as published publicly by the law firm I worked for. They also quote some of the posts made by the employee on the first page. Be sure to read it through as it is extremely insightful and interesting.
This emerging and interesting new field of the law has definitely gotten me excited to do more work like this. It also spurs some interesting questions for me: What is an expert? What is a reasonable person? How would a reasonable person be expected to understand Facebook's privacy settings? Questions abound, but more importantly what do you think of the case?
You're in a job interview; nervous and optimistic, when suddenly you are asked to hand over your personal phonebook, diary, scrapbook and family correspondance....
“I think it’s very dangerous and unnecessary to start asking people for access into their personal lives. Once you start asking people to reveal everything about themselves, which is irrelevant to their ability to be able to do a job, you are getting into a tricky area. It’s the equivalent of getting people to spy on prospective staff down at the pub before hiring them. It’s also quite a lazy way by bosses to get a full picture of somebody and shows that their interviewing process is unsatisfactory.”
- Sarah Veale, Head of Equality and Employment Rights, Trades Union Congress.It's a quagmire for both employees and their employers. Both groups should be most concerned with
what can be seen by others on the Facebook page. A simple Facebook search can help with that. Organizations shouldn't be asking employees for this information unless it pertains directly to the job or the employee has/is publicly bashing employers past, present or future. What matters is:
- Is the employee publicly connected to the organization?
- Does the employee talk about specific work related business on Facebook where others can read it?
- Does the use of Facebook effect the relationship between the employee and their work?
"In recent months, we’ve seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information. This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.
The most alarming of these practices is the reported incidents of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends." - Facebook.comIn the United States spotlight grabbing politicians are pushing the Feds to investigate this issue. Some originally insinuated that Facebook would take legal action against employers who asked for logins and passwords. This was recently rebuffed by Facebook. According to some less sensational reports the practice is pretty rare, for now. In Canada the practice may be even rarer as the Canadian Charter of Rights and Freedoms prohibits this type of request based on discrimination. According to the Spec:
"There is no law that particularly prohibits an employer from asking for that password. It does not specifically violate any privacy legislation. But, by asking that question, employers expose themselves to complaints of discrimination under human rights legislation.
Both the Ontario and Canada human rights legislation prohibit discrimination in employment on the basis of, among other things, race, ancestry, place of origin, ethnic origin, citizenship, creed, sexual orientation, age, family status, marital status or handicap. That’s a long list of things you wouldn’t usually learn during a job interview. It is contrary to human rights legislation to ask questions with respect to these issues." - TheSpec.com
|photo by: @jeremylim|
The following presentation was prepared as a Professional Development lunch and learn for a real estate development firm in Vancouver. The audience was great and the boardroom was packed full. The presentation has a Personal/Professional Development focus. This presentation was created from scratch specifically for this purpose.