Workplace: Your office chats are only funny until somebody gets subpoenaed
Whatever you type can and will be used against you
By Rebecca Greenfield
Earlier this month, John Cook, the executive editor of Gawker Media, was forced to live out the personal nightmare of the modern, group-chatting professional class. He had to explain in open court why he and his staff had been making penis jokes. “I would characterize it as workplace humor,” he’d said in a deposition taped last year that was played in front of a jury and livestreamed online.
Terry Gene Bollea, aka Hulk Hogan, is suing Gawker for $100 million over a video the site posted in 2012 featuring the wrestler having sex with the wife of a friend. Included in the evidence are more than 30 pages of Gawker conversations from the work-chat platform Campfire, starting with “we’re about to post the Hulk Hogan sex tape” and devolving into jokes about whether Hogan’s penis was “wearing a little do-rag” and a discussion regarding the color and consistency of Hogan’s “pubes”—and that’s just two pages in.
Since that conversation occurred, group chat has only become more prevalent in offices, mostly because it cuts down on e-mail. Campfire now has 100,000 daily active users; Slack has 2 million. (Gawker switched from Campfire to Slack in 2014.) Another service called HipChat says billions of messages have been sent using its service.
Workplace chat i s often called a digital water cooler, because it’s where co-workers have informal conversations at the office—sometimes about work, sometimes not. “Our normal workplace interactions have moved to digital environments and therefore become permanent in ways that water cooler chat never was,” says Eric Goldman, a professor of technology law at Santa Clara University School of Law.
The very nature of chat—its informality and speed—makes gossiping and joking easy. Slack has features that encourage levity, including a GIF generator and customizable emoji. So now is a good time to remind anyone at work: Chat like everyone is watching. “Any electronic records that are relevant to a particular claim are discoverable in civil cases,” says 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. 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.”
Multiple lawyers had never heard of Slack, but their advice is plat formagnostic: 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. “We all say things in the workplace that we don’t want repeated,” Hanswirth says. “But there’s a level of discourse that you may not want to have in writing of any kind.”
Slack lets premium subscribers set custom retention periods for chat records so they self-destruct after a certain amount of time. (For nonpaying subscribers, the messages stay on Slack’s servers indefinitely, although you can manually get rid of them whenever you want.) “This deletion is permanent, and the messages and files are irretrievable,” Slack’s help page warns in bold letters. But that shouldn’t change chatters’ behavior. Lawyers employ an army of people to find information. Plus, you never know when a suit will be filed; 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, bigoted, or crude ideas. But even in regulated industries such as Wall Street, where digital communications, including Slack chats, are explicitly saved and monitored, people continue to put the wrong things in writing. In one case, a one-word chat (“awesome!”) effectively revised an existing contract, costing an e-cigarette maker $1.2 million.
In a courtroom setting, chats, however tongue-in-cheek they may be, could color how the jury judges the case. “It’s understandable that people will use these platforms for casual conversation,” Hanswirth says. “But sometimes it’s hard to explain to [a jury] that you really were not being serious.” <BW>
“WE ALL SAY THINGS IN THE WORKPLACE THAT WE DON’T WANT REPEATED”