5 J. Bus. & Tech. L. Proxy 1 (2010)

handle is hein.journals/jbtprxy5 and id is 1 raw text is: DAMIAN R. LAPLACA & NOAH WINKELLER*
Legal Implications of the Use of Social Media:
Minimizing the Legal Risks for Employers and
Employees
INTRODUCTION
THE EXPLOSION OF ONLINE SOCIAL MEDIA FOR BUSINESS purposes has increased the
liability risks for employers and employees. The use of technology and social media
has raised new workplace issues that require a constant review of employer Internet
and email use policies. Many of the workplace issues involve whether the employer
had in place a policy covering the use of the technology or social media for business
and incidental personal use and whether the employee had a reasonable expectation
in the privacy of messages sent or received. What was once verbally discussed in
private is now communicated in a way that creates a permanent record, and more
often than not is the subject of an email, text, or instant message, all of which can
fairly easily be retrieved, printed, forwarded, and made public. In fact, the Supreme
Court recently accepted for review City of Ontario v. Quon,1 which addresses
whether a California city's SWAT team employees had a reasonable expectation of
privacy in personal messages sent via city-owned pagers. In most cases, the
adoption and enforcement of the use policy will drive the analysis of whether the
employee could reasonably expect his messages to be free of employer scrutiny and
otherwise remain a private communication between two (or more) people.
Most employers have adopted policies that govern the use of email and the
Internet for business and personal use and state that the employee should expect no
privacy in these communications or sites visited. For legitimate business purposes,
many employers monitor email communications and websites visited, though not
 2010 Damian R. LaPlaca & Noah Winkeller.
I   Damian LaPlaca is a partner at Donovan Hatem LLP in Boston, Massachusetts. Noah Winkeller is a
student at the Northeastern University School of Law. The purpose of this article is to provide general
information, rather than advice or opinion. It is accurate to the best of the authors' knowledge as of the date of
this article. Accordingly, this article should not be viewed as a substitute for the guidance and recommendations
of retained counsel.
1.  130 S. Ct. 1011 (2009).
2.  Id.

JOURNAL OF BUSINESS & TECHNOLOGY LAW PROXY

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