You Said What? Life in the Electronic World

By Glenn A. Duhl, Esq.

Social_Media_RisksIt has often been said that Snapchat is a social media channel through which one can snap a photograph, send it to others, and it will be visible for a short period of time before it disappears forever. Many people have been surprised to learn that this is not the case–the photos continue to exist. Anthony Wiener learned his lesson about texting photos. More recently, Harvard College rescinded admissions offers to at least 10 prospective students after the school discovered they had traded sexually explicit memes and messages in a private Facebook group chat.

What does this all mean? We live in a world where communications that were formerly made verbally by phone and face-to-face are now permanently etched into retrievable electronic media. And, those communications are more frequently republished to others who were not the intended recipients. In other words, the private text may not have been intended for re-tweeting.

Hurt feelings from texts, tweets and emails are more frequently making their way into the courts in the form of claims for, among other things, defamation (libel where written, or slander where verbal), intentional infliction of emotional distress or negligent infliction of emotional distress. One might wonder how this affects a person’s right to free speech. While it is true that statements which are factual are not actionable, and opinions cannot be shown to be false, there is nothing free about defending a lawsuit. So what is one to do?

I recently learned of another lawyer who installed a delay in the enter/send button on his keyboard. Why? He said his initial reaction to an email might be to type and send a stern, if not caustic, reply to another’s email. The delay feature forces him to cool down and not send the initial message he typed. Hence, an electronic “pause.” Most of us would be well-served by pausing before we speak or type–particularly when the response is prompted by anger or concern–but in today’s 24/7 fast-paced world, time is of the essence. Still, that haste comes at a price.

With that increased pace, we may also see people failing to take responsibility for their own actions. What should we do? In the employment context, employers must remind their employees of management’s expectations. From the outset, an employer’s policies and procedures concerning job responsibilities and performance requirements should be clearly communicated to all employees, along with the consequences when the performance falls short.

Providing an employee handbook outlining the employer’s policies, including attendance, discipline and job performance is best. It is the baseline against which future conduct may be measured. The employer may also detail disciplinary policies. Let the employee know the specific consequences for failing to comply with expectations. The range of discipline may include a reminder of the rule, discussion, written warning, suspension, demotion or termination. Let there be no surprises. Make it clear. This is an opportunity both to protect the business and help the employee improve: if it doesn’t exist in writing, employees may not be held accountable

Consistent with that premise, each coaching or warning must be presented to the employee, and the employee should be asked to sign a receipt of the notification. Should the employee’s view of the circumstances differ from that seen by management, you should encourage the employee to write his/her version of the events. You never know how it may help.

At the end of the day, the words we type may help or hurt someone. I like being on the winning side; don’t you?


Glenn A. Duhl is a management-side employment and litigation lawyer  at Zangari Cohn Cuthbertson Duhl & Grello P.C. Please visit

The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.     

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