Surprising Legal Dangers of 'Safe' Social Media

Michael J. Sacopulos, JD


September 24, 2014

Innocuous Photos Could Get You Into Trouble

3. If Your Practice Website Posts Photographs

"As a general rule, every image you see on the Internet is going to be copyrighted," says Greg Wesner, Esq., of the Seattle-based law firm Lane Powell, PC. Wesner is a leading intellectual property rights attorney who routinely handles litigation in the healthcare space.

"What we have seen in the medical practice context is a physician's staff or brother-in-law who owns a web design company and builds the physician's website. That person then goes on the Internet and pulls down images to use in constructing the practice's website."

The problem, as Wesner correctly identifies, is that often the images pulled off of the Internet are copyrighted. Using an image without permission makes the website owner an "infringer" under the law. This legal distinction comes with potential liability that can be costly. "An analogy would be, you are walking through an airport and you see a bag. No one is standing next to it. You grab it and decide to make off with it. It is really no different [when using images published elsewhere], except that in the context [of taking the bag], we recognize it as stealing because it is a more common understanding for us," Wesner explains.

But not all of Wesner's work involves innocent misappropriations of photographs. "We have also seen the posting of another physician's before-and-after images on a website," says Wesner. Wesner represents one of the top facial plastic surgeons in the county. What he has discovered is disturbing. "We have identified at least 15 instances of his before-and-after pictures being used on other physicians' websites." People like Wesner and his clients are actively imposing liability for the unauthorized use of copyrighted photographs.

Advice: Do not post any image/photograph unless you know that you have the rights to use it. This is a rapidly growing area of liability. Owners of images can electronically scan the Internet to look for their images, thus leading to infringement claims.

4. You Could Get Into Hot Water if You Review Social Media When Hiring

Liability from social media use does not end with posting. Even the review of social media sites in certain circumstances can lead to trouble. When it comes to hiring new employees, "Lots of people will simply Google candidates and see what they find," says Amy Loggins, a Georgia-based labor and employment lawyer with the firm Taylor English. Much of the information obtained from reviewing social media sites, says Loggins, is information that "you don't need to know when you're going through the hiring process."

Furthermore, she warns that the Fair Credit Reporting Act has very precise steps that an employer must follow if a job offer will not be made or is withdrawn, or if an employee is terminated, on the basis of a background check. Loggins points out that no one would ask a candidate about his or her religious beliefs or age in an interview, but often this same information is found via a social media search.

Loggins' message is that you cannot unring the bell. Once you know a candidate's pregnancy status or religious belief, this knowledge can be used against your practice in an employment law claim. Loggins recommends that practices be very careful when using social media to vet candidates and current employees.

Advice: Do not search employees' or employment candidates' social media profiles. You may learn inaccurate information or information that can be used against you later.

Suggested Reading

The Federation of State Medical Boards recently issued social media guidelines for physicians. It is worth your time to review these guidelines.


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