Social Media and Confidentiality Clauses


Recently read an article about a teenager whose Facebook status update cost her father the $80,000 settlement he won in an age-discrimination lawsuit.

The facts are simple. Father signed an agreement for an $80,000 settlement in an age-discrimination case. The daughter bragged about the award on Facebook. The employer sued to get the settlement award overturned, with prejudice, meaning he can’t sue again.

The employer won.


The article calls it the “biggest Facebook mistake ever.”

Sadly, this is certainly not true. While this is an excellent example of someone not understanding how consequential social media commentary can be, it’s not unique. This type of crap happens all the time. I have a friend who does criminal work, and he loves to tell stories about all the low-hanging fruit he finds on Facebook. He told me that the first thing he does when he gets a case is to go to the Facebook and Twitter feeds of every key witness in the case. You’d be amazed how many critical admissions he finds there.

Lots of folks are in jail (or not in jail) because someone couldn’t keep from running their mouth on Facebook.

Don’t think this applies to the startup world? Ha. Nearly every set of startup documents includes a few confidentiality clauses. And indemnification clauses. Plus, startup founders are fond of putting non-disclosure agreements in play for every conversation they have with potential partners. These clauses have serious consequences for anyone who shares private information publicly.

Because we’re not robots, we like to talk with the ones we love about what’s going on in our professional lives. Sometimes we’re excited, and sometimes we’re frustrated. But either way, we like to share. If you have a conversation with your brother or your wife, that conversation might technically violate a confidentiality clause. But because your brother and your wife aren’t likely to acknowledge or mention this conversation to your counterparty, you probably won’t suffer any adverse consequences.

Social media is the megaphone that announces your violation of the confidentiality clause to the outside world. Regardless of whether your profile is set to “private,” social media commentary takes an innocent violation of a confidentiality clause and broadcasts it recklessly to friends and acquaintances who might not be quite so forgiving or hesitant to communicate that information to your counterparty.

Take heed. If you have a friend or loved one you confide in about a confidential relationship (already probably a bad idea), make sure they understand that any reference to that confidential relationship is strictly off limits on social media.

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