Happy Birds

Articles about people losing their jobs after making jokes in poor taste have been circulating for a while now, driven by social media. But a recent trend in US court judgements shows that hitherto private social networks are becoming a rich seam of evidence in court, too.

The case of New York PR officer Justine Sacco has been well-documented: she tweeted a poorly thought-through joke before boarding a plane; by the time her flight landed she was trending worldwide on Twitter, and within days had lost her job.

Or take the story of the software developer who made an unfortunate joke about a computer dongle slightly too loud to his chagrin – only to lose his job as a consequence of someone sitting nearby who decided to broadcast her sentiments of the man’s sense of humour to the Twitterati. As if that wasn’t a step too far, Adria Richards, who had initiated the storm by tweeting her distaste, later lost her job due to the backlash against the backlash.

I’m not about to revisit the debate over how careful we should be with social media, but I recently read about another worrying trend: retrospective court judgements being based upon photos shared over social media.

How many emotions does a picture show?

There’s the sordid tale of Danny Cuesta and his school pupil victim: in 2006, high school teacher Cuesta was sentenced to 15 months in jail for having sex with an underage girl. His victim then sued the school for “emotional distress”, “alienation of affections” and “loss of enjoyment of life”. I don’t expect much doubt would have been poured on these fires in most cases, but in this victim’s case the defence lawyers soon found her Facebook feed with accompanying photos of her and her boyfriend enjoying all that life has to offer. The victim was then ordered to grant access to all private areas of her social networks.

Or think for a moment about Kathleen Romano who was confined to home with a back injury after her chair collapsed. 12 years after attempting to sue the chair’s manufacturer the legal case remains ongoing. Why? Because defence lawyers found her smiling outdoors on her daughter’s Facebook feed.

Another? In 2011 a former Home Depot manager from California sued the company for gender discrimination, claiming that she’d suffered anguish, anxiety and isolation. The case settled out of court after lawyers pointed out how many well-wishers had sent her a birthday message on Facebook.

Do you accept Facebook’s emotions policy?

On one hand, one could argue that photographs of plaintiffs have been used as valid evidence for as long as cameras have been around. However, the some of these cases have used photographs to interpret emotions which I find not only weak but very subjective. And that the law can then be applied to this subjective assumption is greatly concerning.

For example, how many people have killed themselves, only for family and friends to express deep shock? “He seemed so outgoing and happy,” they say, recounting the time they spent with the living, breathing, 3D version of the person. It also suggests that one should express guilt and remorse 24 hours a day, with no respite. Even the extreme branches of religion don’t require that.

Image from NY Times

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