How to Lose (or Win) a Lawsuit on Social Media: Watch What You Post!
By Vince Zuccaro, litigation attorney.
Comedian Mitch Hedberg once said, “I don’t own a cell phone or pager. I just hang around everyone I know, all the time.” It was in this luddite spirit that years ago I terminated my Facebook account. With that, I lost my ability to overthrow African warlords from my keyboard, blast brunch selfies to strangers around the globe, or read current events as curated by an algorithm that makes the old Soviet Pravda seem unbiased. From then on, I guess I would just have to hang out with the people I knew, or at least contact them via text.
Some people, a few billion at last count, still use Facebook and other forms of social media. Some, it seems, use it with some modicum of common sense and decorum. For instance, if you know that the authorities can see your account, you generally might think twice before sharing proof of illegal activity. Or if you told your wife you’re going out of town on business for the weekend, you’d be wise not to post photos from the beach party at Put-in-Bay. (A friend of mine actually did this.) But did you ever think you’d be on a witness stand explaining last weekend’s posts to an opposing attorney?
That’s what happened about a year ago when an employee from one of my clients left and began soliciting customers to his new, competing enterprise. There was no noncompetition agreement in place, but the former employee had agreed to a one-year non-solicitation covenant. In short, he could work elsewhere and earn a living, but he could not try to take my client’s customers with him. Those customers were the product of my client’s longstanding name, reputation, and goodwill. The goal here, as always, was merely to prevent unfair competition.
So how did my client know that this former employee was soliciting his customers? Because it was plastered all over social media! Specifically, this person tagged nearly 50 of my client’s customers in a post inviting them to use his competing service. I actually had to break my Facebook fast and sign up for a stalker account just to keep tabs. The hits kept coming.
Based upon these posts, we were able to obtain a temporary restraining order enjoining this former employee from soliciting any of my client’s customers. That seemed to work…until about two days later when this former employee again posted numerous photos and tags of himself with, and at, my client’s customers. So, I filed a motion to show cause as to why this person should not be held in contempt for failure to follow the court’s order. Suddenly aware that he had yours truly as an online admirer, he posted, “…to the stalkers who are currently stalking me, there’s absolutely nothing wrong with what I’ve posted, it’s called freedom of speech b****es. F*** YOU!!!! make this exhibit 665.” At the show cause hearing, I made him explain that post from the witness stand. It was the highlight of my week.
The point here is that “watch what you post on Facebook” isn’t just a lecture for teenagers. It can make or break a lawsuit. Be smart and aware with what you share to the public. (Also assume that anything you post only to your “friends” will find its way to others.) Likewise, you should absolutely be using Facebook and other social media to ferret out the types of lies and disinformation that you could never otherwise get the other side to admit. Sometimes the information you’re looking for is out there for all the world to see. Just remember to look for it.