Bryan Cave's Douglas Winter
E-DISCOVERY
Beware: Your 'tweet' on Twitter could be trouble
Latest networking craze carries many legal risks.
December 22, 2008
Twitter fans, listen up: Your "tweets" could land you or your employer in legal hot water.
That's what lawyers are advising about the latest social networking craze known as Twitter, a free blogging service that lets users post short answers, known as "tweets," to one simple question: What are you doing? The answers can't be longer than 140 characters and are shared among designated friends and colleagues who follow one another in cyberspace.
Lawyers caution, however, that Twitter carries a number of legal risks. Users posting tweets from corporate networks could expose company secrets. These conversations, lawyers note, are legally binding and subject to the legal rules of electronic discovery, which means tweets could be subpoenaed in a lawsuit.
Twitter also raises invasion of privacy and defamation issues. Trademark violations could also be alleged if Twitter users appear to have a relationship with a company or product when one does not exist or post tweets to dilute a trademarked name.
Twitter could also trigger more workplace retaliation and wrongful termination claims, whereby users will claim that they were retaliated against or fired over protected information they tweeted, such as being harassed at work or disclosing a safety violation.
"Be careful what you say," warned attorney Douglas E. Winter, who heads the electronic discovery unit at Bryan Cave and advises companies about emerging technologies. "Twitter, like any electronic communication tool, is subject to a wide range of potential liability," he said. "I basically tell people that, yes, it's a new tool, and it's very trendy. But no electronic tool should be treated any differently as they emerge."
Winter stressed that tweets are no different from letters, e-mails or text messages. They can be damaging and discoverable, he said, which could be especially problematic for companies that are heavily regulated and required to preserve and maintain electronic records, such as the securities industry and federal contractors. Twitter records would be one more compliance headache for these companies, he said, not to mention the possibility of privileged information getting out.
And the shorter tweets can be more vulnerable to misinterpretation, said Nolan Goldberg of Proskauer Rose, who sits on the firm's e-discovery task force, known as the "E-squad." "You can get yourself in a lot of trouble in 140-character [worth of] words," he said. "You say it, and you don't realize that it's creating a permanent record on the Internet. It can go anywhere."
Rod Sorensen, a management-side lawyer at San Francisco's Payne & Fears who counsels employers on technology procedures, agreed.
"They're quick sound bites and instantaneous, and as we know, instantaneous messages aren't the most well-thought out," Sorensen said of Twitter messages. "Someone could, for example, say something when they're angry or frustrated. It opens the door to poor judgment. And, of course, as with other technology, once it's released you're not going to get it back."
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