Yes, you can be sacked for making dodgy Facebook posts Ignorance about Facebook privacy settings is no excuse for complaining about the consequences of publishing off-colour online comments, a US judge has ruled. Robert J Sumien, an emergency medical technician in Texas, wrote a Facebook wall post about giving "boot to the head" to unruly patients. The comment came to the …
You do realise, of course, that precisely the same situation could just as equally apply to posts you make in a ny forum, such as this one?
This ruling amounts to yet another piece of "Shut Up and Obey" legislation. I'd be interested to know what country this ruling was made in, however.
"post about giving "boot to the head" to unruly patients.
Um I would think that if your employer found you you were talking on public forum about kicking patients you would be fired."
Unless, of course, you had heard the incredibly funny radio sketches (and one audience participation chorus song) from the Canadian troupe The Fanatics. If you had, this would begin to take on the tone of furloughing someone for medical cause because he had donned a knotted handkerchief and droned "my brain hurts" or had made scurrilous and invasive comments about lumberjacks in song.
Is no-one else worried that venting in semi-public after a hard day and using obvious hyperbole to let off steam is seen as an actual threat to do physical harm with no evidence that this is in fact a realistic fear?
if not: when is that Simon bloke who writes so much "violence in the workplace" porn on The Register gonna get his, then?
A Boot to the Head for the idiots who did the firing for not understanding the difference between the internet and real life. And one for Jenny and the Wimp.
But hold on a minute. If you are not at work you can say what you want about work.
You are allowed to hate your job or your employer. There is no law against it.
This ruling greys the area between home and work. I know in the USA employers don't like their employees having holidays but trawling through Facebook twitter etc or more likely another employee reported the guy to his boss is just plain wrong.
"If you are not at work you can say what you want about work."
No one has said otherwise. You have a perfect right (security clearance, &c., notwithstanding) to say exactly what you please about your job, in whatever context you like. What you don't have is the right to say whatever you like, wherever you like, in perfect freedom of consequence. You may be held responsible for embarrassing your employer, whether you do so on work hours or off.
If that's a problem for you, my advice would be to stay in the UK, where apparently the government has insinuated itself so thoroughly into the employment relationship that there may as well just not be private employers any more. If that's what you like, fine! Here in the US, though our Reds are working on it, we're not there yet. If you don't like that, you're more than welcome not to seek employment in the States.
Well, judging by the fact it was a Texas circuit court which handed down the ruling, I'd tend to assume it occurred somewhere in the United States.
I like that you call this "Shut Up and Obey". I know Reds don't care to hear it, but employers do actually have the right to protect themselves from potential liability incurred by the actions of their employees. A medical professional talking in public about kicking patients in the head seems to me a clear liability risk, not to mention being the mark of someone severely lacking in discretion -- which, in a field where people's most intimate secrets can frequently become one's day-to-day business, is, quite reasonably I think, considered a necessary skill of the job.
Even the people who lost their jobs over it acknowledge this; their defense, after all, was not "we didn't do anything wrong", but rather "we didn't know we were talking in public". They could, though, reasonably have been expected to know this, according to the decisions of two courts so far. Next to that, I fear your frankly rather lazy Nineteen Eighty-four references don't add up to a whole lot.
Yes employers do have the right to protect themselves from potential employees' liability. Users of social networking sites need to stop being so naive about what they broadcast, and for that matter, why.
EMT work is not easy and yes there are some very belligerent patients who will get on your last nerve. I have heard horror stories from friends who do and used to do EMT, search and see for yourself.
People vent and say things they don't mean to all the time but why put it in writing where it can be viewed by a wide audience? Unfortunately it seems to be in vogue to put your entire life on the internet and getting sacked for what you post is nothing new, happens all the time.
Despite the fact that the court was in the US there is no guarantee that the crime (if one existed) actually took place inside the borders of the US. If you didn't know it, the US has granted itself jurisdiction over the whole world.
If you are a male and take a leak in public in France where it is legal, you are guilty of a crime in may US States and could be branded a sex offender for life.
Anon because I am innocent.
Anon because you are lying.
Let's see some proof, shall we, that someone, whether US citizen or otherwise, faced criminal charges in the United States for pissing against a wall in France -- I'll grant that the US legal system sometimes behaves in ways which appear bizarre, and I'll certainly grant that the utopians currently in power don't give a damn for sovereignty either in theory or in practice -- save their own, of course -- but even so, what you're saying would be a hell of a stretch. (Admittedly, this challenge may end up costing me a faceful of egg, but with someone who doesn't seem to know the difference between tort and crime, it doesn't seem too big a risk.)
I'll also grant that we've occasionally had visiting aliens fall foul of our laws regarding indecent exposure, which for example limit where, in public, you're permitted to whip out your cock and befoul the common pavement. I don't know what the state of the art might be in France, but here in the States, we have indoor flush toilets for that purpose, and many of them are freely accessible to the public. My advice for folks visiting from countries, where pissing up against a wall in public is apparently acceptable, would be simply that they familiarize themselves sufficiently with the local laws to avoid committing such crimes. No one would be making this excuse for me if I went to Singapore and got my ass proper beat for vandalizing a car, like that little moron Fay did a decade or so ago, so why do I have to listen to it on behalf of people who can't hold their water until they can find a public toilet? -- a skill I, little exceptional among Americans save in having some knowledge of history, had mastered by the age of ten.
(Besides all of which, if the court is in the United States, and the person before it is a United States citizen, then it doesn't matter in what jurisdiction a crime took place. Why should it? Do you suggest that middle-aged child molesters should flit off to Thailand to rape babies, and then come home olly-olly-oxen-free?)
(I'd also note that I've pissed up against plenty of things in my life, and never once got in trouble by it. We don't, for example, have flying FBI squads with piss-sensors and assault rifles. What we do have is an expectation, I think entirely reasonable, that both our citizens, and our visitors, be civilized enough not to urinate in public. Those unable to satisfy this expectation would be well advised to avoid visiting the States.)
It's one thing to have cultural standards of behaviour - it is certainly NOT nice to urinate in public. But, there are times, like at 4AM when the bars close, when you have had 6+ pints of beer plus water and are walking home for 30 minutes, that things become unfortunate. Pressing even. Making it illegal, as opposed to simply bad behaviour frowned upon, simply speaks of an overly prescriptive society... (PS - for you Americans that don't travel overseas much - meaning most of you - many European towns have now started putting up plastic open air urinals in town on Friday and Saturday nights for just such extingencies. Because at least the Europeans know that a man's gotta do what a man's gotta do...I just feel sorry for the girls who need to go!)
But, there are times, like at 4AM when the bars close, when you have had 6+ pints of beer plus water and are walking home for 30 minutes, that things become unfortunate.
So you stay up til 4AM, you have 6+pints of beer and water, you don't make plans to get to a rest area within a reasonable time frame considering your self-imposed condition, and you think that makes it acceptable to piss all over everyone else's stuff?
I'm sorry, but I for one think the stupid selfish dickishness that leads to calling such activity "unfortunate" rather than "the completely predictable result of a course of action which illustrates a severe deficiency in common sense" is what should be illegal. I think you'll find that attitude is at the core of most if not all "real" crimes.
Those of us who have brains and can use them know how to appreciate alcohol, without wasting it on others' walls.
When I was a kid hitch-hiking in France in the late 70's I got a lift with a guy and his wife and, I think, a couple of small kids. We stopped for a break in a semi-rural area, he got out, and relieved himself against a wall by the road. Surprising but, on reflection, not a big deal. What exactly is offensive about it? I don't want to see anyone doing it in a public area, but there comes a point where the state has to stop interfering with ordinary people, and give them credit for being smart enough to work out for themselves whether it's socially acceptable to get your zip down in an emergency. If you live in a country which is sufficiently anally retarded or fascistic enough to legislate on this, where do you draw the line? Are you allowed to let your 2-year-old have a wee in a corner somewhere in an emergency? A 5-year-old? A 45-year-old? Who decides? The police? The storm troopers? Anyone remember the story about Freud and Jung walking down a street, possibly in Vienna, when Freud was taken short? He couldn't bring himself to get it out in an alley somewhere, so he urinated down his trouser leg. Jung spent the rest of Freud's life goading him about it.
And, I've got to say, I'm not surprised at the response of the US commentards. When I go, all I can see are ORDERS everywhere. Bloody orders. Don't get out, don't stop, don't cross, don't camp, don't light a fire, someone else owns this, sod off, go away, move on. Whatever happened to the Land Of The Free, the country I wanted to live in 30 years ago? All gone - you guys need to stop occasionally, and wonder what a foreigner in a free country would think. Not that it's much better here in the UK. I'm pretty sure that we've got a pissing-in-public law about to come in. And walking on the cracks in the pavement within 10 miles of the olympics wil lget you shot. And so on.
When my children were younger and they wanted to go to toilet in Homebase.
I pointed out the toilets, but they didn't want to use them as they might have been seen.
Pity really as if these places insist on putting toilets everywhere we should at least use them.
1982 is your idea of a savory period in American history? Wow.
"...there comes a point where the state has to stop interfering with ordinary people, and give them credit for being smart enough to work out for themselves whether it's socially acceptable to get your zip down in an emergency."
This from a subject of a country which suffers barbarians to run amok in the streets of its capital and doesn't even bother trying to restore order, but which won't even permit its subjects to own a pump-action shotgun for home defense. Your idea of liberty strikes me as curious indeed; given the choice, I think I'll stick with firearms ownership, NO TRESPASSING signs, and laws against pissing in public.
Quite right, you tell 'em. Course what about those who can't afford firearms? Maybe if you gave the poorest people guns they might have been able to shoot it out with the gretna police when Katrina hit.
Always got the impression that liberty in American English was one of those words that meant something different, must remember not to ask an american if he want's to nip out for a fag again.
As a licensed shotgun owner in the UK, I can assure you we DO allow pump action shotguns. Moreover, unlike rifles (for which I am also licensed), the law states that it is ASSUMED you have a right to a shotgun, and that the police can only deny you one for good reason. Now,a great many UK shotgun owners PREFER break barrels because of our shooting range's safety rules - we insist that when changing stations on a trap or skeet course, you must _visibly_ show that the weapon cannot fire when you are moving - it is not such a strict requirement in the US. So a break barrel owner simply opens the barrel and rests it on their arm while they walk - a pump owner must get out their yellow breech flag, open the chamber, insert the flag, walk 10 steps, and then undo it all. Too much hassle - which is why I have an excellent Beretta Prevail O/U rather than one of their fine pumps. After all, I use it at the range once or twice a week, whereas the odds that I will need to fire more than 2 consecutive shots for "home defence" are minuscule...if you think you will, you probably need to practice more.
You really don't seem to get out much, do you? As the great Douglas Adams wrote: "Many respectable physicists said that they weren't going to stand for this, partly because it was a debasement of science, but mostly because they didn't get invited to those sorts of parties." So I can see a lack of experience in enjoying yourself and socialising on your side, so let me explain.
Even if I pee before I leave a pub/club/friend's house, there is still a chance that I may develop a pressing need, particularly if I have imbibed a great deal of water towards the end so that I am not dehydrated the next day (which is bad for your brain cells, as dehydration kills them, as anyone who has studied biology in university should know). And I don't know what city or town you live in, but in many, many places there is a dearth of places to actually urinate in a public restroom at night - and knocking on stranger's doors in the early morning hours usually gets the cops called, not a bathroom break.
Now, when I was YOUNGER, and living in the US, we drove to the bars, so we were home in 10 minutes - not really a problem. But that was before MADD, and the vast reductions of allowable blood alcohol levels, and the ever stiffer penalties. Now, like most people, I walk, or take public transport (try getting a cab in London at closing time!), and it takes far longer. USUALLY, there is no need to pee. But there is that one in X times, that for whatever reason...I and hundreds of thousands of others may need to do something that is socially naughty, but should hardly be a crime. After all, DOGS AND CATS DO IT, on the roads, against your fence, etc. So stop pretending to be living in a sci fi fantasy world of white robes, buildings built on clouds, and germ-free living. Organisms pee. Best done in a room designed for it with sanitary disposal of such, but society should be capable of being comfortable for the odd exception (provided it is done with the most possible discretion, which I assure you I personally do maintain). They call it "when nature calls" for a reason. Public displays of peeing needlessly say at noon in front of an open McDonalds (for example) can better be dealt with through the use of normal public indecency laws...
"Despite the fact that the court was in the US there is no guarantee that the crime (if one existed) actually took place inside the borders of the US. If you didn't know it, the US has granted itself jurisdiction over the whole world."
WTF are you talking about no crime was committed and employer fired some. This was all done inside of the US boarders. The article clearly states so.
I'd say the question of whether or not there was a crime is particularly relevant to the story, court decision not withstanding: Should venting in a public forum be a firing offense?
Yeah, the previous poster is a hoser and obviously wasn't asking the question from a reasonable mindset, but the question itself is, I think, legitimate.
Yeah, ok, reading and comprehension fail on my part in not noticing the US references. Doh.
That aside, however, do we feel the same way about the "Blow up Robin Hood Airport" story? Or how about those that said "Hooray! Riots!" on facebook during the riots and the heavy sentences that followed? Tally that up with how our leaders like to talk about restricting and monitoring social networking and then what do you think?
Personally, my answer to this is simple: We have free speech in this nation - Did he kick anyone in the head? Did he physically conspire to blow up an airport? Did he take actual part in the riots? No? Then NO CRIME has been committed.
We should, and must have the inalieble right to say what the hell we like, when and where we like and not be subject to censor. Likewise, if someone says something f'in stupid on facebook, myspace, a forum, the TV, the papers, the radio or on a soapbox in Hyde Park Corner we have the right to point, mock and laugh too (the right to parody is an important part of this argument).
I will allow for the exception of "incitement" in such cases, so inciting people to kick patients in the head, start a riot or blow up an airport is possibly a criminal act, but merely saying it should not be. If the BNP, PETA Extreme Religious Fanatics or anyone else want to stand there and spout whatever nonsense they like and be unfraid to do so due to official (as opposed to public) censure.
This is a free country, and restriction of speech by any means is a step towards erosion of those freedoms. You have a right to an opinion and an equal right to express it however you wish. Your employer is not your morality-watchdog and must never become such.
For the last everfucking time: No one is arguing that a crime has been committed, and all of you who are discussing criminal law are probably having a lot of fun but you're not talking about anything to do with the article. The question is whether the employer is justified in sacking the employees. That was what the tort was about, and the judge ruled that the employer was. Come back when you understand the US legal system well enough to know what you're talking about, OK?
So, I can have punitive action taken against me by another party without recourse to the judicial process? I think there's a thing called a "tribunal" that may disagree.
I may not know much about US Law (I'm a UK citizen and hold this aloft as an example of something we don't want over here thankyouverymuch) but I believe you have a sort of law that goes by the following wording.......
"The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances."
And the 14th amendment goes on to clarify that...
"There are exceptions to these general protections, including the Miller test for obscenity, child pornography laws, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors and inventors over their works and discoveries (copyright and patent), protection from imminent or potential violence against particular persons (restrictions on fighting words), or the use of untruths to harm others (slander). "
Oddly, I don't find ANY right of an EMPLOYER to censure the speech of an EMPLOYEE, or to take PUNITIVE ACTION based on such speech.
Yep, I think we are indeed discussing a point of law. One wherein an employer has clearly broken it and appears to be allowed to do so with impunity.
In one breath, you admit you know little or nothing of how the law works in the United States.
In the very next breath, you presume to explain to me which United States law applies in this situation, and how.
How marvelous! They do say a true fool isn't equipped to recognize his own foolishness -- you, sir, not only embody that dictum, you transcend it. A more perfect idiot I might never hope to see.
I've produced a great deal but ad hom in this thread, but you're apparently not equipped to understand any of it, so I'm not too surprised you fail to acknowledge it. That you're not so equipped, but for some reason feel yourself capable of participating in the argument anyway, leaves ad hom as the only appropriate response; as you've made plain, anything more rigorous than that, you'll simply fail to comprehend in any case.
I mean, sure, ordinarily I wouldn't indulge in it, but I had to get down to your level somehow.
Gotta disagree with you on this one Em. People need a place to blow off steam. Unless it is evident from the thread that there was an actual danger to the patients, they shouldn't get the boot for this. IT people do it all the time, hell, we've even got websites dedicated to them.
Always amuses me when I hear americans talk about Reds, don't know why, just sounds quaint and you just know you are likely to read/hear some classic quirp on what the general american population considers to be the evil known as communism.
Course I am assuming that you weren't referring to some utlra Liberalist 'Football' team who wear red jerseys.
Ah, I see: When you say "You" you actually mean "You if you work in the USA". Which a lot of your readers still don't.
In the UK it's common to see T&Cs that require you not to damage the reputation of your employer. But just lately the news seems to be full of employers embarrassing their staff...
On a flat forum (such as El Reg) I'd agree.
But on a networking site, it's very difficult to keep your identity a secret, if you use it as intended, and network. After all, whilst I personally can't claim to know "Mr Hugewilly", the fact they know me, and 3 other people on Facebook rather hints at who they *really* are.
And if you aren't using the networking element of Facebook, then what the fuck are you doing on it ?
We are going to hear more and more about this, as time goes on. Especially when lawyers muscle in, with the intent of linking a persons postings to their day job. My prediction is that somebody who works in finance makes a casual comment on their wall that anybody investing in "X" might want to consider "Y", only for lawyers for "X" to come after that persons *employer* if the "advice" turns out to be incorrect. Now you and I would assume that comments in passing on a social networking site are bupkes. But you might get a court to agree that because the OP worked for "ABC investments Ltd.", their musings could be interpreted as "advice".
We live in the interesting world the Chinese hoped for ....
Actually, if I see an investment professional giving what appears to be financial advice, and not following it with the ubiquitous disclaimer on that subject, then, yeah, I'm going to assume it is intended as financial advice. That's not an unreasonable assumption when every investment professional, who is worth even a sliver of the trust his clients repose in him, knows very well that he can be held to account for his statements, and is therefore obsessively careful to indicate via disclaimer what is and is not intended as financial advice. I'm not sure how you see the involvement of Facebook making any difference in this.
Well you're fucking mad then, Aaron. If someone working in finance (the term investment professional, was never mentioned until you used it, by the way) was to post on their friend/mother/sibling/whatever's wall saying something along the lines of "you might want to invest in x) then they got in trouble for it (as this ruling is a slippery slope towards) and you don't see any problem with that then you're out of your mind or just a complete authority drone.
Suppose he had posted it on his own wall where he knew exactly who had access to the post. Suppose further that he had a spat with one of his friends and he/she printed the post and give it to the employer. The post is not public, but it has come to the employers attention through the printout. Would it still be legal to fire him?
What if we are talking about an e-mail between two people?
Ah, the intricacies of the law ....
My view is that the 2 things that should factor are:
1) Intent
Was the *intent* to be a public or private communication ? Sadly, I would have to say that the very act of using Facebook for *anything* would have to support the view that the communication was intended for "public" consumption. That is it was entirely foreseeable that it could be distributed. After all, if you wanted a private communication, why not use email ?
2) Resources
Was the communication made using the companies equipment ? I have known people disciplined for private emails sent on company equipment (and by implication on company time).
With LinkedIn and the like becoming more entrenched, it is harder each day to maintain personal presence on the web which can be kept separate from your professional presence. Not sure where it will end.
Lets re-phrase that
Suppose he had told a friend in private at a dinner party. Suppose further that he had a spat with one of his friends and he/she then told the employer. The conversation is not public, but it has come to the employers attention through being verbally told. Would it still be legal to fire him?
Please read the article. These people did not speak in private. The argument you're making therefore remains invalid, until we've seen a judge rule on a tort like this which does revolve around private communication. Until then there is no knowing how a judge will rule, which means there's little point in speculation, especially highly tendentious (he said politely) speculation of the sort in which I suspect you wish to engage.
"The conversation is not public, but it has come to the employers attention through being verbally told. Would it still be legal to fire him?"
Yes. It's not an invasion of your privacy if your employer was given the information by your ex-friend. Your employer didn't do anything except listen to (or read) something that was given to them voluntarily.
Your ex-friend could be accused of unethical behaviour, or just being an arse, but that's still not a crime.
The mistake was making the post. What happened to it afterwards was pretty much inevitable: Facebook is an ad-supported website and therefore about as private as Speaker's Corner in London's Hyde Park.
There's a damned good reason why so many people in the past kept a secret diary: it gave them somewhere to vent their spleen without the problems described in the original article and this forum thread. You had to (a) know that diary existed, and (b) gain physical access to that diary, in order to get at its contents. It's a lot easier to prevent at least one of those happening than it is to undo a post to a social network or online forum.
In the EU we have an expectation of privacy under EU law. Employers are allowed to monitor e-mail and telephone calls only if they let you know in advance that they are doing so, and it's for appropriate purposes such as financial compliance or business dispute resolution. That still doesn't mean that they can act against you if they "overhear" you say something they don't like in a conversation or e-mail to a person you call a friend. You'd have to have broken the conditions that the monitoring was put in place to enforce, and that monitoring would have to be reasonable. They'd have to be rather careful even if a now ex-friend forwarded to your employer, messages that you believed were private communications when you sent them in the first place..
But if you post in a public forum, you can't argue that you expected privacy. It's more akin to shouting in a public place (where bringing your employer into disrepute has long been held acceptable cause for disciplinary action).
The name "Twitter" conveys to me an image of immature fledgelings in a nest. They Twitter for attention. Quite often the attention they get is from a cat or magpie thinking "lunch".
So realistically with every post you make you need to publish a disclaimer that confirms the context of the post?
*this post is intended as a humorous comment on the state of the world and in no way should be taken as an actual intention or recommendation, nor does it necessarily reflect the opinions of any of my employers, companies, friends, family, enemies or other persons connected or unconnected, living, dead or undead. This post may not be repeated, published or referenced without also including this full disclaimer. (c) Copyright 2012 by the author who asserts his moral right to be identified as the author.
Realistically, with every post, you need to not be stupid enough to shoot off your mouth in public with something that's certainly going to embarrass your employer if it goes viral, which on Facebook of course anything juicy enough will. Medical professionals talking of kicking their patients in the head sounds pretty juicy to me.
Like I say upthread, if nothing else, this is evidence of a complete lack of anything resembling discretion. In a medical professional, the absence of this trait absolutely is a liability risk for the employer. What if, the next time this numpty shoots his mouth off in front of God and everybody, he says something that's covered by HIPAA privacy rules? Not a risk I'd want to take, and I don't blame these people's erstwhile employer for coming to the same conclusion.
"Medical professionals talking of kicking their patients in the head sounds pretty juicy to me."
I think there are an awful lot of professions where the staff let off steam when they are well away from the 'customers'. Medical students in particular are known for robust and inventive humour, so if you want to insist on absolute decorum at all times we could be very short of people to look after us when we need it.
The intended audience should be a strong consideration in cases of this sort - what if I told a joke to a group of mates in the pub and someone ran to my employer an spun it as a factual statement? Should that be a cause for sacking as well?
I do not insist upon absolute decorum at all times. I insist upon the minimal decorum and discretion required to avoid saying stupid, embarrassing, potentially actionable things in public. This seems not too excessively arduous a requirement to me. Should you like to argue otherwise, please try to limit yourself to the facts of the matter, rather than spinning hypotheticals which support your arguments but fail to correspond to reality. Thank you.
There is a difference between 'a group of friends talking amongst themselves and being overheard' and 'standing at a bus stop shouting'.
That's the difference between the 'facts of the matter' and the way you seem to want to view it. 'Public' is not such an easy thing to define on the web. Are we going to say anything unencrypted counts? Or something you said only to a few selected friends but then one tweets it to loads more people that you don't know, out of context? Did you say that 'in public'? At what point does it become 'public' in that chain of events?
I could have a one-to-one IM with someone but my unencrypted wifi could be intercepted. Are those messages now 'public' too?
These were Facebook posts which were accessible to any Facebook user.
That category contains, at last count, somewhere in at least the mid-nine-figures -- let's say three hundred million, which gives us a reasonable number while still lowballing Facebook's own (possibly inflated, possibly not) estimates by a factor of around two and a half. That should give us a reasonable middle ground, I think. It's also, not by coincidence, also a reasonable approximation of the current population of the United States.
I think it'd be hard to argue that anything, accessible to three hundred million people, cannot be called 'public'. Of course not all three hundred million will be looking at it at once, and that's not in fact necessary to call it 'public'; the city of Baltimore, to pick an example, contains many fine public parks, each of which remains 'public' whether at a given moment it contains three hundred people, or a half-dozen, or none.
Of course, a physical analogy implies a problem of physical access, which does not exist in this case; as was established in the article, and as no one here has even tried to argue isn't the case, the Facebook posts in question were available, simultaneously, to about three hundred million people. If the whole thing had "gone viral" and been posted on the front page of everywhere, then every single one of those people could in theory be looking at it all at once. (Of course Facebook would go down if they all tried, but that doesn't impair the argument, because the posts would still be there for the rest of three hundred million to see as soon as Facebook came back up.)
In what way can you possibly argue that this place, metaphorical though it be, is not public? In your own example, it's "standing at a bus stop shouting through a megaphone big enough to reach a whole country's worth of people".
I mean, it's cute that you seem to want to argue all these bizarre hypotheticals, none of which remotely approach relevance to the case in hand. (Unlawfully compromising the content of a private conversation renders the conversation public? Are you really going to argue something that silly in front of God and everybody? I wouldn't -- hell, in my state, you can't even lawfully record a conversation in which you are participating without the explicit consent of all parties involved!)
But inventing your own facts, which you find preferable to those actually shown to exist in the context of the discussion, really isn't going to favorably impress anyone who is at all worth impressing.
All that said, you're right to note that we're still feeling our way into how this sort of thing works on the Internet. That we are doing so, seems no sufficient reason to abandon the principle, that we may expect to be held responsible for the provable effects of things we say or do. (Mostly 'do', even now; people don't yet routinely go to jail in the US merely for uttering racial slurs, to pick a recently controversial example. Give it a couple of decades, though...)
Sheesh, some people have no sense of humour. Apart from the "I'll get my coat" icon, the disclaimer did state it was intended as a humorous comment.
I guess however it does prove the point that even when you intend a humorous comment, and clearly label it as such, somebody is likely to take it out of context
"These were Facebook posts which were accessible to any Facebook user."
No, they weren't, so your assumptions are wrong right off the bat. If you've used Facebook you'd know that's the line between public and private is hazy and blurred and so wouldn't be making these ridiculous "anything you say on Facebook is public" line over and over. Yes, that might be a good attitude to adopt to keep yourself out of trouble, and it may even be the way the law decides to look at it, but in real terms Facebook is a weird mish-mash of public and private and is no doubt going to take some time to work out socially and legally when it comes to examples like this.
Considering the opposite ruling about a year ago with a waitress and a current case involving students, I'm sure it eventually work it's way up to SCOTUS for a mixed ruling. Probably... naming the employer/other employee/customer directly is actionable for an employer but general spouting off isn't. I doubt the schools would even be given that much leeway considering that the events didn't occur at the school.
This.
I use linked in when I like to maintain a thin veneer of respectability; my facebook profile is slightly more private and not shared with the sort of people likely to employ me, and the content reflects as much.
I still keep my customer-kicking commentary offline, however.
When My space first came out I had a supervisor tell me never friend management, even if you are in management. Engagement i s not your friend but there to help the company. If Management sees some thing stupid you are gone. If you are in management don't friend people under you. A pissed off employee can come back and bite you. If for some godforsaken reason you feel the need to friend co workers careful of what you say.
In a nut shell don't friend people you work with.
Don't wear your name badge form work.
Same applies on the internet. If you must complain about idiot customers and bosses, as many of us do, then do so anonymously* and do so with extreme care not to mention any real names. That way, even if the bosses read and know it's you talking about them (though they never should be able to) them they're on much shakier ground trying to suggest defamation, or otherwise bringing your employer to disrepute.
*Anonymously as in your real name not attached without a court order ought to be sufficient for most employers. Idiot "friends" do still have to be guarded against, however.
I think you have a little difficulty here:
Thoughts: inside the head; invisible unless spoken or communicated
Facebook: outside the head; horribly visible. Whoops, you communicated those thoughts, and not just to your lover in the secret spaces of the night, but to the whole damned world
Internet: see Facebook. For many, it amounts to the same thing these days.
What you'll probably find is that someone wanted to give him the boot but needed to cover themselves legally. Simplest way to do that is to go onto facebook and look through their posts or better yet, hire some firm to do that for you. Find something that can be twisted to suit your purpose, ignore context and blow it out of all proportion. I have seen more than one firm use this tactic to avoid making people redundant.
This is as good a theory on how 'staffing reviews' are decided as I've seen.
I remember a review when a bunch of managers sat in front of a list of names and took turns picking a name each. Those names that were left, ahhh, left. It reminded me of picking kids for competing sports teams at primary school.
In 2010, three engineers from Alten were fired for a similar reason, see http://www.english.rfi.fr/france/20101120-three-fired-facebook-criticisms-bosses. They argued their comments were private, but the judge said they were made in a public space, so having them fired was justified, there is an obligation of loyalty towards your employer.
Ok, I think "loyalty" might be a bit strong, but there is a not unreasonable expectation of "not engaging in outright treachery against your employer". Slagging them off in a fairly public place OR making statements "incompatible with your profession where others having naff all to do with your profession" kinda falls into that category, although like many others here I'd love/fear to know where this all stops.
Is this specific to things you post publicly or do the same rules apply if you DO lock down your privacy but
a)the site you post on is hacked and data is released
b)the site inadvertently releases the private data without hacker help
c)one of your FB friends shops you
Is it getting found out, or the action of posting publicly, which is the offence?
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