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Debt Collectors Using Social Media: Is It Legal?

Like many other industries, debt collectors are using the tools at their disposal to locate debtors and collect outstanding debt; social media and even texting have come into play. It leaves some wondering if it is legal and/or ethical.

According to the FTC, the Fair Debt Collection Practices Act doesn’t prohibit this, as long as debt collectors are staying in compliance. This can be a bit more tricky with social media compared to other methods for contacting debtors.

Along with the more standard compliance issues, including being upfront as to the reason for the contact, not using deception to get debtors to contact the collection agency, and providing full disclosures, there is one area that can get fuzzy when it comes to social media.

It’s standard law that debt collection agencies cannot discuss or disclose information to third parties. In a traditional sense, if a collection agency calls a home to speak with someone, they can discuss specifics with the spouse, for example. When it comes to social media, it means a bit more than this.

First, it prohibits debt collectors to post information on a person’s social media site in a pubic facing venue. This means that they can send a tweet directed at the user, post on someone’s Facebook wall for the world to see, or reach out publicly through a message board or forum. This, for example, is wildly problematic:

Second, it takes it a step further and makes the waters more muddy. In many social media venues, one would have to join the user’s social network (become “friends” on Facebook, or mutually follow each other on Twitter) to communicate through private messaging or Direct Message, which would fulfill the third party disclosure compliance. However, in a recent FTC investigation, it was determined that “[D]ebt collectors may violate the FDCPA and/or the FTC Act by . . . requesting to join debtors’ social media networks (for example, by sending a ‘friend request’ on Facebook).” So that’s not an option either.

What’s left for debt collection agencies as far as using social media to identify and communicate with debtors? Since direct communication can be risky, they can use social media monitoring to

Learn more about the debtor’s current address or other identifying information, such as a cell phone number, if the person has their profiles set to public vs private

Identify connections through social networks that may help them locate the debtor to make contact

Learn more detailed information about the debtor, including if they are currently employed, which would indicate that they have an income with which to repay the debt

While social media and mobile devices have potentially made life a bit easier for debt collectors, the laws are still as stringent as they are for traditional means of contact. Of the two, text communication appears to be the safer for direct communication. However, social media background checks and social media research can be incredibly helpful for this industry if used correctly.

Where Chipotle Went Wrong With Social Media Policy

Social media policies are good to have in place, but as we’ve seen this week, it’s a good idea to review the policy and make sure it has a legal standing. This was not the case for Chipotle, and it landed the company in some legal trouble.

Long story short: An employee posted a tweet about his opinion of his employer, stating that “nothing is free, only cheap #labor. Crew members make only $8.50hr how much is that steak bowl really?” He was told that this violated Chipotle’s social media policy, which bans “disparaging, false” statements and was asked to delete it, which he did. While disparaging, it was not deemed false and was in fact a permissible statement to make, although probably not the best tweet to post, especially directed at your employer.

After this, the employee again turned to social media to encourage coworkers to sign a petition regarding employee breaks. He was then fired for doing so.

The case was taken to court, and found that Chipotle’s social media policy was illegal and ordered the company to rehire the employee, provide back pay for lost wages, and post signage that indicates some of their employee policies, especially the social media policy, were illegal.

Why did this happen?

While Chipotle’s social media policy strictly banned employees from posting false and disparaging content on social media, the judge stated that the content has to be proven to have a malicious intent; in this case, the judge decided it was not malicious in nature. Lesson learned – posting negative or misleading content cannot be the sole basis for violating a social media policy; malicious intent must be proven.

The social media policy violated an employee’s protected concerted act. Examples of this type of protection include employees talking with management about pay or working conditions, and employees discussing other workplace issues outside of pay among themselves. Circulating a petition was within the employee’s rights in this case, and cannot be deemed a violation of social media policy. Lesson learned – a social media policy cannot be general in nature and must take into account various types of content that may be posted, including those falling within an employee’s protected concerted activity.

Social media policies are important, but we’ve seen that they are being closely scrutinized in the legal world. It’s important to have one in place, but even more important to have one that falls in line with legal issues to save further time and trouble. This is one example of how a social media policy can go wrong; I anticipate other similar suits to follow across the corporate world going forward until the kinks are worked out.

Impartial Jury: An Endangered Species

Social media usage has made it difficult for lawyers during jury selection, particularly when it comes to finding an impartial jury. Before the age of social media, news did not travel as fast, so potential jurors for an upcoming trial may not be as aware. Today, news is 24/7 and travels at breakneck speed – whether or not you’re actively social, it’s more likely now that you’ll hear more news items, quickly followed by everyone and their mother’s thoughts on it.

This is where an impartial jury gets tricky. During voir dire, potential jurors may be asked if they are familiar with the defendant, plaintiff, and/or the event that is going to trial. It used to be that major incidents were well known, but now even the more minor issues going to trial can be more well known than before. This will result in more jurors being aware prior to the selection process, and potentially being excused.

Social media poses another area of concern as it relates to an impartial jury – incorrect knowledge or predisposition. With the faced paced knowledge obtained through social media and online news outlets comes false information. Because news travels fast, and the new “journalists” are everyday people recording and commenting on what they see, there is a lot of room for misinformation. Not all people reading social and news sites will carefully consider the source or fact check before they believe information to be true. Therefore, if they are in a potential juror pool, they may have beliefs about the parts of the trial that are incorrect, leading to a juror bias.

This makes it trickier than before to select an impartial jury. It is also another reason that using social media research tools during the selection process can help. Simply put, this research tool can monitor an individual’s public facing online persona within moments to learn more about who they really are. It will also give insight into whether or not they are presenting themselves in a real light during jury selection.

At the broadest level, this type of research can uncover a potential juror’s bias or discrimination that may be a conflict during trial. More specifically, using this type of service can help with ensuring the selected jurors are in fact as impartial as possible to provide a fair trial.

For example, a potential juror is asked if they are familiar with the defendant. They may really want to be on the trial for some reason, or want to appear as though they are impartial, yet a quick scan of their online social presence may find that they were actively talking negatively about the defendant on Twitter right after the incident happened; therefore, it is easy to dispel the idea that they could be impartial during trial.

Social media has not made it easy to ensure an impartial jury, and the fear is that this is in fact an endangered species. However, lawyers can turn that around into a positive by employing social media data research tools to try to provide clients with the fairest trial possible.

Use Social Media Monitoring to Grow Donations, Contact Lists

There’s a new twist in using social media monitoring, thanks to geo-based monitoring capabilities. This is good news for those interested in increasing contact lists for email marketing, or even for non-profit organizations seeking to increase their donor base.

Below is a great example of how geo-based social media monitoring can be used effectively. With this newer piece of social media monitoring, a virtual “fence” can be set around a particular area to see real live social media posts from that area. From there, keywords can be utilized to further enhance the results if needed. What results is a list of individuals and their public social media accounts for targeted engagement.

A park is looking to increase donations to make improvements on their walkways, hiking trails, and other amenities. Outside of traditional means of gaining visibility and traction, geo based social media marketing can easily identify those who use the facilities to market directly toward them. Once they identify visitors via social media accounts, it is easy to engage with them on social sites, and use the site’s advertising platform to message this group directly. It can be effective in encouraging email signups, bring awareness of the project to a targeted group, and increase website visits, which may turn into donations.

Here’s why it works and provides better targeting for online advertising/engagement

People may be posting images while they are on the hiking trails, but never specifically say where they are. However, the geo-based monitoring will identify their location at the park. The image below is a great example of this:

In the collage of results, you’ll have the screen name for the individual who posted (these were removed for the purpose of this blog post), as well as the date/time they were visiting and details on what part of the park they visited.

You can engage in a few different ways: once you have the collage of results, you can engage with them directly from your social site, either publicly or via private message, or receive the list of screen names to import into a Twitter ad campaign, for example. Twitter offers a tailored audience feature, which allows you to segment a group of Twitter users based on your geo-based research, and have the ability to communicate and/or advertise directly to them.

This is becoming an inexpensive, efficient way for businesses to refine their advertising efforts. It’s especially useful for organizations where it may be difficult to identify visitors and groups via traditional means. You can learn more about this service on our website.

Leave Social Media Monitoring to the Police

Social media content has been helpful to police in many ways. In some instances, criminals themselves make the mistake of using social media to their disadvantage. These are two real life examples:

1. Three teenagers break into a junior high school and steal items. They are easily caught after posting images of their exploits on SnapChat, where several classmates see this and tell their parents and the school.

2. A victim met a gentleman in an apartment’s parking lot to buy a handgun. As they were agreeing on terms, the gentleman allegedly loaded the gun and demanded the victim’s belongings. The person handed over his money in an envelope, at which point the gentleman got into a vehicle and fled. Instagram posts led to his arrest, on his own accord.

In other instances, police rely on other social media data to assist with crime investigations and even crime prevention. However, there are some risks that come along with it. One example comes from eyewitness recollection and the increase in social media usage. It’s widely known that eyewitness testimony can be unreliable; some research indicates that up to 70% of wrongful convictions are due to eyewitness inaccuracy. With regard to social media, this intensifies as everyone now plays “detective” in news making situations, providing potentially false information on public venues, creating additional work on the part of law enforcement as they sort through millions of social media posts and content and follow up on these leads.

While it can be tricky, law enforcement’s use of social media data has surely been invaluable. It’s important though, as citizens, we let law enforcement do their job and not muddy up the waters, so to speak. I can imagine their social sites receive well more tips than a traditional hotline; they have tools and resources to better sort through information, but it is helpful to “post with caution” when news breaks and not flood inboxes with information that may or may not be helpful.