Roger writing the LAWmag

Facebook: The Law Is Intrigued.

As the reach of Facebook takes on ubiquitous proportions (1-billion users worldwide), the tidal wave is reaching the shores of law. A search of “facebook” on CanLII yields over 550 results, and that, necessarily since 2006, the year Facebook was launched publicly.

The law is certainly taking notice. The early points of friction have been privacy issues and juror communication ("mistrial by Facebook") but other issues have surfaced as well: child/adult Facebook connections, and then as the Courts themselves struggle with this social media/communication tool.

One Facebook post and reply, by a disgruntled employee, in 2009,  and which may be a hoax, nonetheless hi-lights the dramatic entrance Facebook has made into the halls of things legal (image below). In it, the employee disparages her boss, who replies by firing her - all live on Facebook!

ADULT-CHILD FACEBOOK FRIENDSHIPS

Other than an increasing number of school board internal policies and procedures, there are no laws of general application governing the matching-up of children and adults who, in some capacity, have a supervisory role towards them.

[Facebook post re employment]But there are other views on child-adult Facebook friendships. One teacher at the local high school never befriends his students. He told us:

"They can send me a friend request when they are adults."

The law, notoriously slow to react to societal changes, leaves this alone for the most part, leaving it to the individual judgment of the users. But events such as the alleged recent actions of Florida teacher Angelica Cruikshank tend to awaken the interest of the law towards all things Facebook.

Cruikshank was a Spanish teacher at the Land O'Lakes High School. It is alleged that in early 2012, she became aware of critical comments about her posted on Facebook by some of her students. She retaliated by calling out the students she suspected of the postings, put on the spot to speak of it openly in the classroom, and holding out permission to attend an upcoming field trip to the St. Petersburg Salvador Dalí Museum as an incitement to "come clean".

According to the allegations of the school board, Cruikshank then wrote up a list of suspect students and encouraged other students to vet her list.

The teacher's alleged actions, if true, seem so immature that this story will likely boggle the mind of most teachers.

Just as night follows day, the students predictably told their parents ... who told the school board ... who now threaten the teacher with the death penalty of employment law: termination of employment.

It would be a harsh penalty and one which is being litigated but it does hi-light some of the problems associated with Facebook which sooner or later, the law must address.

JUDGES

Many, if not most lawyers have Facebook pages.

[Facebook warning sign #1]But judges? In the United States (where most judges are elected), a 2010 survey by the Conference of Court Public Information Officers found that 40% of judges have Facebook accounts.

Judges are conservative by definition (they have to be). Many keep a safe distance from the realities of contemporary social media, a strange phenomena apparently anathema to the very private and thoughtful pace of a judge's work environment. A 2009 paper Martin Felsky wrote for the Canadian Judicial Council reads like a primary school textbook:

“Facebook is an interactive electronic bulletin board.…. It contains so much personal information, makes it an attractive target to hackers and unscrupulous marketers…. A Facebook friend is merely someone with whom you have chosen to share certain information about yourself, and your other friends.”

And so, when lawyers get appointed to the bench, the first thing to go is their Facebook page. That is understandable: Facebook friendships and judicial independence are practically irreconcilable. How would you like to find out after you lose a case to a judge that she and the other side were Facebook friends?

And yet, as Felsky writes:

“Facebook is not only for the young or the hip. It can also be quite enjoyable for a judge who wants to connect with family members, see photos of children or grandchildren and keep up with classmates from high school.”

Lithwick and Vyse are even blunter:

“Judges are people too. They have spouses and children and long-lost high-school boyfriends. They have egos and ambitions, and some of them also have expensive election campaigns to finance. They are bombarded by requests to join Facebook, LinkedIn, and Twitter. And why shouldn't they?

“The judiciary is the only branch of the federal government with a negligible social-media presence. Sure, there are some unofficial Facebook fan pages but there's nothing official but the sound of silence. … Americans constantly complain that the courts lack the transparency of the other branches. So wouldn't an ongoing judicial (social media) feed reassure us that our justices aren't hiding in a monastery, covered in bubble wrap?”

But it is not a perfect world and where there are human decisions, there are human mistakes of judgment, even with judges.

In one Pennsylvania case, an American judge, Charles Hayden refused to recuse himself for being a Facebook friend of a litigant! The Court of Commons Pleas required him to do so.

[Facebook warning sign #2]Or consider this egregious example of Judge B. Carlton Terry:

“The judge and lawyer had decided at the beginning of a child custody/support proceeding to friend each other on Facebook and then exchanged comments about the case on the social network. That contact led to the reprimand for ex parte communication. The judge was also reprimanded for his independent research on the parties, without informing either side, through his visits to the wife’s business website, a photography business, to view her photographs and poems.”

After Chief Judge Ernest “Bucky” Woods of Mountain Judicial Circuit Superior Court, Georgia, contacted a criminal defendant on Facebook and sought social contact with her, Bucky was hit with a barrage of criticism and he chose to resign.

These cases are the exception but they give contrast to the rule, and demonstrate that Facebook is creeping into the offices of judges and that it is an uneasy relationship, still void of any clear set of rules or guidelines.

Mr. Justice Herbert Dixon of the District of Columbia Superior Court suggested to an American Bar Association panel in 2011, these rules of wisdom:

  • Judges should not “friend” lawyers on Facebook as it creates an inappropriate inference.
  • A judge should be aware of the contents of his or her social networking page, be familiar with the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.
  • A judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party.
  • A judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.

LEGAL OPINION

In this, as with adult-child Facebook friendships, the best rule or guideline remains common sense.

REFERENCES:

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