Can these tweets and posts land us in trouble?

Mike Zinser

Question: Is there any legal liability associated with social media posts, other than defamation? If so, how should this shape our social media policy? 

Answer: Very possibly, the answer is yes.

A music celebrity was traveling with her four-year-old daughter on Southwest Airlines. While she had a "Business Select" boarding pass numbed A-1, her daughter's boarding pass was numbered A-34. The celebrity wanted her daughter to be able to cut in line, ahead of other Business Select passengers, and board with her. The Southwest agent told her, "If you want to board with your daughter, board with her when she boards normally with the sequence A-34."

The celebrity was outraged and posted the following statements on Twitter, Facebook and Southwest.com:

• "Gracie is 4. FOUR! she wanted her to board by herself or make us wait Till A34. Even though I was business select!"
• "I fly @southwestair at least 75x/year. just had WORST experience. Me; A1, Sadie: A3 Gracie A34. Woman refused 2 let Gracie board w/ me."
• "Nashville. Gate A25. Flight to Denver. Her name is Jennifer. She said "get over it. Follow the rules. Or don't fly."
• "She has done this to me before. She has the WORST customer service. My daughter is FOUR."
• The celebrity re-tweeted: "that is ridiculous! [W]hat did she expect? Her walk on herself & find her seat like a grown adult?"
• "If your [sic] sympathize with me, when you respond be sure & include @southwestair in tweet. They need to know this WRONG."
• "Sadie had MAJOR blowout. I think it's in response to our southwest air experience. She decided to leave them a gift on their plain. Teehee. Asked me what they can do. I don't want free flight. Just apology from Jennifer. It's 4^th time she's done it to me. Time will tell."
• "Well, we've caused quite a stir, tweeps. @southwestair just called me. I appreciate their concern & prompt attention 2 the problem."
• "I've got wifi on my flight. I'm impressed with how quickly @southwestair responded to my complaint. I'll keep u posted as to what they do."

The Southwest agent filed suit for defamation and "false light invasion of privacy." While the Tennessee Court of Appeals held that the social media postings were not defamatory, it remanded for trial the issue of false light invasion of privacy. The Court asked the question, "Was there such a major misrepresentation of [the Southwest agent's] activities that serious offense may reasonably be expected to be taken?"

The Court opined that one can be liable for the tort of false light invasion of privacy if the following occurs:

1. A matter concerning another is made public, putting the person in a false light;
2. The false light in which the other is placed would be highly offensive to a reasonable person; and
3. The person giving the publicity had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The Court stated:

We believe that a reasonable person would find, under the circumstances of the incident, that [the celebrity's] posting of selective facts placed [the Southwest agent] in a false light by implying that [the Southwest agent] was a rude and bad service agent, one who is more concerned with adherence to airlines and procedures than the welfare of the child, and that these implications caused injury to her."

The Court of Appeals remanded the case for trial.

Expect to see more litigation like this. People will say things on both social media and e-mail that they would never print on letterhead. There is something about the immediacy of social media that can cause people to say outrageous things. When drafting policies and conducting training, urge your employees to think before they tweet or post – and to always keep in mind the factual context of the subject matter expressed on social media.

Note: Nothing in this SNPA Legal Hotline Q&A should be relied upon as legal advice in any particular matter.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.

SNPA's free Legal Hotline for members – (844) 804-2016 – is designed to assist newspapers with a broad range of legal issues. Hotline attorneys and CPAs will tackle questions about circulation, independent contractors, labor and employment law, taxes, finances and accounting, employment benefits, open records, libel and privacy, and other issues newspapers encounter.

The attorneys and CPAs who will take calls from SNPA member newspapers are the best in the business:  The Bussian Law Firm PLLC, Fisher & Phillips, Way, Ray, Shelton & Co., P.C. and The Zinser Law Firm.