Work­place: Your of­fice chats are only funny un­til some­body gets sub­poe­naed

What­ever you type can and will be used against you By Re­becca Green­field

Bloomberg Businessweek (Europe) - - NEWS -

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 Hip-Chat 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 Hans wirth, 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 form-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. “We all say things in the work­place that we don’t want re­peated,” Hans wirth 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,” Hans wirth says. “But some­times it’s hard to ex­plain to [a jury] that you re­ally were not be­ing se­ri­ous.” <BW>


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