Social Media and Municipal Liability
In many respects, social media has become a part of everyday life for many. As a result, it has changed the ways in which individuals, businesses and local governments communicate. Unfortunately, the lines between official and private use of social media can be difficult to discern.
For this reason, local governments must put policies in place to address:
- The official use of social media as a communication tool
- The inappropriate personal use of social media
- Property details
Many municipalities and local governments utilize social media to communicate with citizens. Applications such as Facebook and Instagram can be excellent methods for distributing information and promoting activities, but it is also very important that control of the released information is maintained.
Social media postings can create liability for a governmental entity. Every employee and named volunteer is an agent of the organization, and any statements they make can attach liability, regardless of whether or not those statements were sanctioned.
In addition, some Tennessee local governments have been challenged with how to deal with social media comments that may be critical of local government operations. It should be noted that deletion of these comments may be a violation of free speech. However, there are legal reasons to delete some comments, including racially discriminating comments, profane language, comments that are commercial or political in nature, or comments unrelated to the topic.
Public Entity Partners recommends that our members adopt a social media policy addressing posting, along with maintenance of and deletions from social media sites. In addition, we recommend ensuring that any deleted social media comments are printed with a notation that explains why they were deleted, and that these printouts are saved in a folder.
Other social media concerns include violations of privacy rights or constitutional rights. These concerns should all be weighed carefully before introducing a social media page for your entity or a particular department.
Where to Begin
Before you begin using social media for local government purposes, it is important to determine who will have access to posts. It is important that anyone who posts official communications on your local government’s social media page understands the potential liability that he or she can create for your entity. Designating specific individuals to post content allows you to have more control over the content, and also helps ensure that these individuals receive proper training on what is and is not acceptable to post.
In many local governments, different departments maintain their own social media pages. While this is an acceptable practice, it is important that each department follows the overall social media policy of your local government. Concerns over privacy, free speech and open records impact departmental use of social media just as much as they do a city or local government as a whole.
Social Media Comments, Protected Speech and Open Record Laws
Did you realize that social media use by public entities is considered a public record? Please be advised that content posted to a local government’s social media site is subject to public records laws and the open records act. Any postings that are deleted or removed from a local government-sponsored social media forum should be printed and kept as a record, or stored electronically. It is recommended that each social media forum the local government utilizes includes the entity’s social media policy or a link to the policy. Social media content, just like all other public records, should be addressed in your record retention manual, authorized in TCA 10-7-702.
Did you realize that comments made on social media sites may be protected by the First Amendment? If you give individuals the ability to post on your social media page, it becomes a public forum where, generally speaking, comments are protected under the First Amendment. Censoring or deleting those comments could be a violation of an individual’s constitutional rights. A police department or governmental entity generally may not delete derogatory comments posted on social media, nor any comments with which the agency does not agree. Such language would generally be protected as First Amendment free speech.
However, there are circumstances under which a governmental entity may act to remove or delete comments posted on social media. If a comment reflects one of the following types of messages, it is generally permissible to remove it:
- Comments not topically related to the post
- Comments in support of or in opposition to political campaigns or ballot measures
- Profane language or content
- Content that promotes, fosters or perpetuates discrimination on the basis of race, creed, color, age, religion, gender, marital status, status with regard to public assistance, national origin, physical or mental disability, or sexual orientation
- Sexual content or links to sexual content
- Solicitations of commerce
- Information that may compromise the safety or security of the public or public systems
- Content that violates a legal ownership interest of any other party
Social Media and Police Departments
Positive ways in which police departments utilize social media include promoting the services provided to the community, department statistics, public safety tips and announcements, and department or officer honors and awards. However, police departments should be cautioned about posting arrests on social media. While it is not necessarily illegal or prohibited, it can increase the department’s liability for civil rights or constitutional violations, or invite claims of libel or malicious prosecution. If your police department does post information on recent arrests, it is important to weigh the public benefits derived against the potential for claims and/or litigation arising from the postings and the information conveyed therein.
In addition to content that the police department itself may post, it is important to take into consideration the impact an officer’s online presence may have on potential cases. If an officer makes inappropriate or discriminatory comments online, a defendant may be able to find that content and utilize it as a way to impeach the character or credibility of the officer.
Social Media and HIPAA
Medical information is protected information under the Health Information Portability and Accountability Act (HIPAA). Employees of local governments that provide medical services, including paramedics and emergency medical technicians, should become well-versed in the regulatory requirements of HIPAA. Putting information or pictures on social media can be a HIPAA violation. Local governments that provide medical services are encouraged to have written policies addressing employee use of social media and annual HIPAA compliance training.
While law enforcement agencies and most school districts are not subject to the provisions of HIPAA, it is still important to caution employees on posting sensitive medical information online.
Social media has become an integral part of society and, in all likelihood, is not going anywhere. Ensuring that your entity has a measured approach to how it uses social media will help protect your entity from unnecessary liability lawsuits.
If you have questions about the liability surrounding social media use, please contact your casualty loss control consultant.
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