Original URL: http://www.theregister.co.uk/2012/07/16/facebook_job_termination_appeal_fail/

Yes, you can be sacked for making dodgy Facebook posts

Employers aren't invading your privacy by reading them

By John Leyden

Posted in Security, 16th July 2012 15:09 GMT

Ignorance about Facebook privacy settings is no excuse for complaining about the consequences of publishing off-colour online comments, a US judge has ruled.

Robert J Sumien, an emergency medical technician in Texas, wrote a Facebook wall post about giving "boot to the head" to unruly patients. The comment came to the attention of his employers, CareFlite, an ambulance service and medical transportation firm, who showed him the door.

Sumien sued for privacy invasion and wrongful termination of his employment contract. He claimed that his employer invaded his privacy because he misunderstood a coworker's Facebook settings and didn't realise comments he made on a colleague's wall would be seen by others inside and outside the hospital.

The comment that resulted in Sumien getting the sack came after his ambulance partner, Jan Roberts, posted a comment on the Facebook wall of CareFlite worker Scott Schoenhardt, suggesting she wanted to slap a patient she had recently transported. This started a discussion about what to do with unruly patients, prompting Sumien's comments.

Both Roberts and Sumien were reported over the comments and both were fired. Sumien sued but a court rejected claims that he had any expectation of privacy about comments posted on a Facebook wall.

A trial judge rejected Sumien's claims that he intended the comments only to be seen by his close friends and threw out his unlawful dismissal claim, a decision recently upheld by a Texas appeal court (ruling, extract below).

http://www.2ndcoa.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=23493

Sumien contends that CareFlite intruded upon his seclusion because he did not realize that Roberts’s Facebook “friends” could view the comment that he posted on Roberts’s “wall”. While Sumien presented evidence showing that he misunderstood Roberts’s Facebook settings, did not know who had access to Roberts’s “wall”, and did not know how CareFlite was able to view his comment, he did not present any evidence to show that his misunderstanding meant that CareFlite intentionally intruded upon his seclusion.

Sumien's comments sound much more like an off-colour rant that a genuine threat, so he can consider himself unfortunate.

Nonetheless his fate serves as a lesson for the rest of us: comments on social networking sites can cost you your job. And locking down your own Facebook settings by itself might not be enough, writes Lisa Vaas on Facebook's Naked Security blog.

"Even if you've set Facebook privacy to only show your posts to friends, bear in mind that when you comment on other people's posts, your words are subject to those friends' privacy settings," she said.

Legal commentary on the case can be found in a blog post by Eric Goldman, an associate professor at the Santa Clara University of Law, here. ®