By John K. Murphy
With the recent spate of demotions, terminations and litigation related to the use of social media to post your likes, dislikes, ranting and ravings under an assumption that your First Amendment protections apply to you here is another thought. They don’t always pertain to you when you write about certain things on your Facebook, Twitter account or other social media avenues. If you listen to Curt Varone or Chip Comstock, two fire department experts on social media and First Amendment rights, they will tell you and they HAVE TOLD you that there are certain protections and certain liabilities related to your freedom of speech. The courts have weighed in on these issues finding for one side or the other based on the interpretation of the facts or protected or unprotected speech. A simple and enforceable policy may assist you and your department is avoiding the Legal Fire’s of a social media policy. I gathered this from another source and I apologize for the lack of citations (a weak legal disclaimer) but the policy can be as simple as this one.
I) PURPOSE
1) The fire department endorses the secure use of social media to enhance communication and information exchange; streamline processes; and foster productivity with its employees. This policy establishes this fire department’s position on the use and management of social media and provides guidelines on the management, administration, and oversight. This policy is not meant to address one particular form of social media; rather social media in general in general terms as technology will outpace our ability to discover emerging technology and create policies governing its use.
II) PHILOSOPHY
1) Social media provides a valuable means of assisting the fire department and its personnel in meeting community education, community information, fire prevention, and other related organizational and community objectives. This policy identifies possible uses that may be evaluated and utilized as deemed necessary fire administrative and supervisory personnel. This department also recognizes the role that social media tools may play in the personal lives of department personnel. The personal use of social media can have an effect on fire departmental personnel in their official capacity as firefighters. This policy is a means to provide of a precautionary nature as well as restrictions prohibitions on the use of social media by department personnel.
III) DEFINITIONS
1) Blog: A self-published diary or commentary on a particular topic that may allow visitors to post responses, reactions, or comments.
2) Post: Content an individual shares on a social media site or the act of publishing content on a site.
3) Profile: Information that a user provides about himself or herself on a social networking site.
4) Social Media: A category of Internet based resources that enable the user to generate content and encourage other user participation. This includes, but is not limited to, social networking sites: Facebook, MySpace, Twitter, YouTube, Wikipedia, blogs, and other sites. (There are thousands of these types of sites and this is only a short list.)
5) Social Networks: Platforms where users can create profiles, share information, and socialize with others using a range of technologies.
6) Speech: Expression or communication of thoughts or opinions in spoken words, in writing, by expressive conduct, symbolism, photographs, videotape, or related forms of communication.
IV) POLICY
1. Strategic Policy
a) Determine strategy
i. Each social media page shall include an introductory statement that clearly specifies the purpose and scope of the agency’s presence on the website.
ii. Social Media page(s) should link to the department’s official website.
iii. Social media page(s) shall be designed for the target audience(s) such as the community, civic leadership, employees or potential recruits.
b) Procedures
i. All department social media sites or pages shall be approved by the Chief of the Department or designee and shall be administered by the departmental information services section or designee.
ii. Social media pages shall clearly indicate they are maintained by the fire department and shall have department logo and contact information prominently displayed.
iii. Social media content shall adhere to applicable laws, regulations, and policies, including all information technology and records management policies of the department.
iv. Social Media content is subject to open public records laws.
i. Relevant records retention schedules apply to social media content.
ii. Content must be managed, stored, and retrieved to comply with open records laws and e-discovery laws and policies.
v. Social media pages should state that the opinions expressed by visitors to the page(s) do not reflect the opinions of the department.
vi. Social Media pages shall clearly indicate that posted comments will be monitored and that the department reserves the right to remove obscenities, off-topic comments, and personal attacks.
vii. Social Media pages shall clearly indicate that any content posted or submitted for posting is subject to public disclosure.
2. Department-Sanctioned Use
a) Department personnel representing the department via social media outlets shall do the following:
i) The use of department computers by department personnel to access social media is prohibited without authorization.
ii) Conduct themselves at all times as representatives of the department and, accordingly, shall adhere to all department standards of conduct and observe conventionally accepted protocols and proper decorum.
iii) Identify themselves as a member of the department.
iv) Post, transmit, or otherwise disseminate confidential information, including photographs or videos, related to department training, activities, or work-related assignments without express written permission.
v) Do not conduct political activities or private business.
vi) Department personnel use of personally owned devices to manage the department’s social media activities or in the course of official duties is prohibited without express written permission.
vii) Employees shall observe and abide by all copyright, trademark, and service mark restrictions in posting materials to electronic media.
3. Potential Uses
a) Social media is a valuable investigative tool when providing information about
i) road closures,
ii) special events,
iii) weather emergencies, and
iv) major ongoing events in the jurisdiction that affects the entire community.
b) Employment Opportunities – Persons seeking employment and volunteer positions use the Internet to search for opportunities.
c) Background Checks – For authorized members to conduct a background check on potential employees or volunteers
i) Candidates applying for employment with this department must sign a release document enabling an assigned employee to conduct a background check using any resource to include social media.
ii) This department has an obligation to include Internet-based content when conducting background investigations of job candidates.
iii) Searches should be conducted by Human Resources or with permission from the Chief of the Department and only for the purposes or providing possible background material on an employee candidate.
1. Information pertaining to protected class status shall be filtered out prior to sharing any information found online with decision makers.
iv) Persons authorized to search Internet-based content should be deemed as holding a sensitive position.
v) Search methods shall not involve techniques that are a violation of existing law.
vi) Vetting techniques using social media as one of many resources to provide valid and up to date information shall be applied uniformly to all candidates.
vii) Every effort must be made to validate Internet based information considered during the hiring process.
1. This shall not be the only mechanism to provide background information on a possible candidate.
4. Personal Use
a) Precautions and Prohibitions
i) Department personnel shall abide by the following when using social media.
1. Department personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of this department for which loyalty and confidentiality are important, impede the performance of duties, impair discipline and harmony among coworkers, or negatively affect the public perception of the department.
2. As public employees, department personnel are cautioned that their speech either on or off duty, and in the course of their official duties that has a nexus to the employee’s professional duties and responsibilities may not necessarily be protected speech under the First Amendment.
a. This may form the basis for discipline if deemed detrimental to the department.
b. Department personnel should assume that their speech and related activity on social media sites will reflect upon their position within the department and of this department.
3. Department personnel shall not post, transmit, or otherwise disseminate any information to which they have access as a result of their employment without written permission from the Fire Chief or designee.
4. Department personnel are cautioned not to do the following:
a. Display department logos, uniforms, or similar identifying items on personal web pages without prior written permission.
b. Post personal photographs or provide similar means of personal recognition that may cause you to be identified as a firefighter, fire officer or employee of this department.
c. When using social media, department personnel should be mindful that their speech becomes part of the worldwide web.
5. Adherence to the department’s code of conduct is required in the personal use of social media. In particular, department personnel are prohibited from the following:
(a) Speech containing obscene or sexually explicit language, images, or acts and statements or other forms of speech that ridicule, malign, disparage, or otherwise express bias against any race, any religion, or any protected class of individuals.
(b) Speech involving themselves or other department personnel reflecting behavior that would reasonably be considered reckless or irresponsible.
(c) Department personnel may not divulge information gained by reason of their authority; make any statements, speeches, appearances, and endorsements; or publish materials that could reasonably be considered to represent the views or positions of this department without express authorization.
(d) Department personnel should be aware that they may be subject to civil litigation for publishing or posting false information that harms the reputation of another person, group, or organization otherwise known as defamation to include:
(i) publishing or posting private facts and personal information about someone without their permission that has not been previously revealed to the public, is not of legitimate public concern, and would be offensive to a reasonable person;
(ii) using someone else’s name, likeness, or other personal attributes without that person’s permission for an exploitative purpose; or
(iii) publishing the creative work of another, trademarks, or certain confidential business information without the permission of the owner.
6. Department personnel should be aware that privacy settings and social media sites are constantly in flux, and they should never assume that personal information posted on such sites is protected.
7. Department personnel should expect that any information created, transmitted, downloaded, exchanged, or discussed in a public online forum may be accessed by the department at any time without prior notice.
II) VIOLATIONS
1) Reporting violations.
(a) Any employee becoming aware of or having knowledge of a posting or of any website or web page in violation of the provision of this policy shall notify his or her supervisor immediately for follow-up action.
2) Violation of this social media policy may result in suspension or termination.
Here are a few simple rules revisited: [1]
1. Don’t post inappropriate pictures or images
2. Don‘t link your work activities to your Facebook postings. For example letting people know that you are a firefighter with ABC Fire Department and proceed to trash talk the Chief, elected officials or other firefighters. Safety yes, trash no.
3. Don’t complain about your job, supervisors, or co-workers in a public forum
These comments reflect poorly on you, the organization, and the persons that you criticize. Negative and derogatory comments may also lead to claims of defamation and slander.
4. Don’t post inappropriate “statuses” Avoid any status updates that discuss patient care situations, your department, or other staff members, or that may implicate unprofessional conduct.
5. Be particular about your “friends” and associations. You can’t control what your friends post to your profile (although you can remove it once you see it), nor what they post to their own profiles or to those of mutual friends.
6. Check your privacy and security settings and know their rules. Privacy and security settings on social networking sites can be confusing and hard to deal with. It is now possible to customize lists of friends and decide what each list can and cannot see.
7. Consider establishing a “professional” profile page
8. Don’t use social networking while engaged in patient care or work activities. Access to social networking sites on your personal device should only occur in absolute down time as you would use a personal cell phone when on duty (if this is permitted by your agency). It is inappropriate to post statuses or to view social networking profiles while with a patient or engaged in company work activity.
9. Don’t misrepresent yourself or others. You should be careful that what you post about your training and education is accurate and consistent with information you have given to your employer.
10. Be who you are. Some posters and bloggers work anonymously, using false screen names. That is usually not a good idea. Transparency and honesty are the best policies to follow. Hiding behind a “handle” name may embolden you to post things you would not ordinarily post (and against your better judgment!).
11. Respect copyright and fair use laws. For your employer’s protection as well as your own, it is critical that you respect laws governing copyright and fair use of copyrighted material owned by others, including your department or agency’s copyrights, logos or images. Use citations early and often.
These are a few simple rules to follow to avoid these Legal Fires. Consult with your local or department attorney for a social media policy applicable to your department. You cannot hold your firefighters responsible if you have no written social media policy and due to the increasing chatter on line about many different issues dealing with you or your department an enforceable policy created now is better than a trashing in the news media or in front of a judge.
[1] Page, Wolfberg & Wirth, LLC
JOHN K. MURPHY, JD, MS, PA-C, EFO, retired as a deputy fire chief after 32 years of career service; is a practicing attorney; and is a frequent speaker on legal and medical issues at local, state, and national fire service conferences. He is a frequent contributing author to Fire Engineering and a podcast host.
