The Legal Minefield of Office Group Chat
We, the modern, group-chatting professional class, saw our personal nightmares play out in a courtroom this week. On Tuesday, John Cook, executive editor of media company Gawker, had to explain, in open court, penis jokes he and his staff made in work group chat platform Campfire in 2012. "I would characterize it as workplace humor," he said, in a taped deposition that was played in front of a jury and live-streamed to anyone who wanted to watch.
Gawker is being sued for $100 million by Terry Gene Bollea, the wrestler also known as Hulk Hogan, for posting a sex tape of the performer. Included in evidence are at least 32 pages of Campfire chats, which begin with "we're about to post the Hulk Hogan sex tape" followed by a series of jokes, including one about a "tender leg drop," Hogan's penis "wearing a little do-rag," and a discussion about the color and consistency of Hogan's "pubes,"—and that's just two pages in.
Since those 2012 transcripts, group chat has only become more prevalent in offices, as Campfire and similar services, such as Slack and HipChat, gain popularity. Slack says it has 2 million daily active users; Campfire has 100,00. HipChat says billions of messages have been sent using its service. (Gawker has since switched over to Slack from Campfire.)
Workplace chat is often called a "digital water cooler" because it's where co-workers have informal, nonwork-related conversations at the office. Slack has features that encourage levity, including a GIF generator and a custom emoji creator. But it's also the nature of chat, its informality and speed, that make gossiping and joking easy. "Much more our normal workplace interactions have moved to digital environments and therefore become permanent in ways that water cooler chat never was," said Eric Goldman, a professor of technology law at Santa Clara University School of Law. "There is no more deniability about these casual social interactions."
So now is a good time to remind office workers: Slack like everyone is watching.
"Any electronic records that are relevant to a particular claim are discoverable in civil cases in the United States," said Dori Hanswirth, the head of the media litigation practice at Hogan Lovells. "There is no, 'well, I was just being funny with my friendly co-workers' exemption to what would be discoverable. If it's out there and gettable, there's a chance that it will end up in the hands of some legal adversary of your company. There is no protection against it."
Multiple lawyers, including Hanswirth, had never heard of Slack, but their advice was platform-agnostic: Never write anything, in any format, to anyone, that you wouldn't want to end up on the front page of the New York Times. "Sure, people will joke around with their co-workers," said Hanswirth. "We all say things in the workplace that we don't want repeated. Everybody does it. But there's still a level of discourse that you may not want to have in writing of any kind, especially in data."
Slack lets premium subscribers set custom retention policies that destroy all messages after a certain period of time. "This deletion is permanent, and the messages and files are irretrievable," the Slack help page warns, in bold. But even that shouldn't change chatters' behavior, said Hanswirth. Lawyers employ an army of people to find information. Plus, you never know when a suit will be filed, and companies have an obligation to halt standard destruction policies once a claim is made.
Of course, we all know that we're not supposed to document dumb, mean, racist, or crude things. Even in regulated industries, such as Wall Street, where digital communication, including Slack, is explicitly saved and monitored, people continue to put the wrong things in writing. In one case, the word "awesome" ended up costing $1.2 million.
At least one employee, Max Read, a former Gawker editor who now works at New York magazine, regrets that "the whole world knows how corny I am," he wrote at NYMag.com today. Beyond embarrassment, the chats could color how the jury judges the case. "It’s understandable that people wil use these platforms for casual conversation," said Hanswirth. "But sometimes it's hard to explain to [a jury] that you really were not being serious."