Risk Mgmt LIVE - Social Media Policies and Churches

Hi, I'm Jerry Sparks, president of AG Financial Insurance, a certified risk manager. And once again, we have Rich Hammer, renowned attorney on church law and tax, report, just glad to have you here again. And boy, we have another hot issue; something that 10 years ago we would never been talking about, but today we're going to talk about social media, the use of social media, the use of having a policy, a social media policy, and some of the issues that have came up with social media and uh how it is affecting our churches.

So you know, Facebook has—I just read that Facebook had over 1 trillion views in June. Twitter has over 100 million active users. A lot of our churches today are using Facebook as their website. Um, YouTube—uh, YouTube is, you know, there's videos of everything on YouTube. As a matter of fact, all of our past videos are on YouTube, and you can look at them at the AG Financial channel. So any of our videos that we have shot for Risk Management Live are available there. So we see that social media can have great things and be a blessing to many churches, but it also can have the most damaging—I think could be an impact, could be on a church's reputation and uh how pastors, employees, and churchgoers can be great ambassadors for their church, but it also can—it can also hurt a church's reputation.

You want to share a little bit about that?

Yeah, Jerry, uh, this is an emerging issue. It's a dynamic issue in the sense that the law, as this—this often happens—it takes a while for the law to catch up with technological innovation, and we see that in so many venues, and we see it here with social media. There's not a lot of litigation yet; there's not a lot of case law. I think there's a lot of hyping of the legal implications of social media, but so today we're going to try to take a balanced, rational look at—I want to look at eight issues, if we have time, and if not, we'll return next week, but I think we can cover these this week. These are not in any order, but there are eight things as I have reflected on this whole topic of social media in the church context. What are—what are some of the issues that I think would be helpful and relevant to you as church leaders? And uh, the first one I want to talk about is the inappropriate use of social media for sexually explicit photos or text.

And the fact is, over the past several months, I have seen a number of cases uh where male youth pastors have been convicted of a felony; usually it's something like uh child endangerment uh for sexually explicit uh social media messages, photographs, text to uh typically adolescent females in the church youth group. And it's interesting, I remember uh late last year I read three cases pretty much on the same day, in different states, unrelated cases, but in each case a youth pastor was sentenced to five years in the state penitentiary for sexting females in the youth group. Now think about that. He thought it was innocent; maybe she thought it was innocent, but he is now serving a five-year prison—each of these guys, five-year prison sentences and a state penitentiary. Their lives are ruined; they are never going to be in a pastoral role again; they will be for years, if not for life, on a sex offender registry. Good luck getting a job in youth ministry or as a senior pastor. What they thought was innocent has devastating consequences. And—and so I—I'll just point out here, Jerry, that I—I teach a fifth-grade Sunday school class in my church; I've done it for 25 years, and I also teach a mentoring group of middle school boys. Because of a—a statement in the biography of Stephen Jobs a year or two ago, many of you have read that—I'll never forget this one account of how when he was 13 years old he brought a copy of a Life magazine with a picture of starving babies in Biafra, and he showed it to his pastor, and he said, "How can this be happening?" And the pastor just blew him off. And—and he—he said—uh, Jobs in this biography—he—he said that, "I walk out of church that day and I never returned." He was 13 years old because the church did not have an answer for me. That really gripped me. And so I'm doing a mentoring group for middle school boys about the age Jobs was when this incident happened, and we start—it's 90 minutes once a month; every class asks questions; tell me what your questions are. I have a curriculum of material that I cover, but many times I'm responding to questions for the entire 90—90 minutes. So uh, that's kind of a mentoring group that I'm doing. But here's the point: I would never use social media to communicate with my fifth graders or with the middle school boys; uh, that would just be crossing a line that I will never cross. Why does a church volunteer or employee have to be uh communicating with minors—10-year-olds, 11, 12, whatever the age—via social media? There is no reason to do it, in my opinion. Well, you could come up with some pedagogical reasons why it might be helpful; I understand that, but they're outweighed by the risks of doing so. And so I've taken a—personally a policy of zero tolerance; I do absolutely no communication via social media. Can you imagine me picking up a telephone at home and calling one of these fifth graders—an 11-year-old girl—to talk, "Hey, how's it going? How you doing?" It's just inconceivable. Anyone that would do such a thing, whether it's social media or—or otherwise, you're contravening a boundary; you may either be clueless or you're predatory, and uh, it's hard to distinguish oftentimes between them. So I personally view this as a dismissable offense for a church volunteer or employee to be communicating via social media with minors. I recommend that you inform parents; we prohibit anyone—employee or volunteer—to engage in social media conversations with members of the youth group or our children's ministry.

Yes, that's—you're going overboard.

Well, maybe I am, uh, but I'm looking at this from the perspective of legal risk and—and so the point is, if you have important information to share with your fifth graders, why don't you just communicate with the parents? That's what I do. Uh, and so I have the email addresses of every one of the parents of my fifth graders, which are about 15. And it's—you know, why do I need to communicate with the children? Why not communicate with Mom or Dad? And that's exactly what I do. Um, sure, there are pedagogical reasons to uh communicate, especially maybe with high school students, but uh, I—I just in my case, I just think the—the legal risks outweigh them. You know, some—some public schools have policies, "Oh, let's have everybody sign a responsible citizens pledge that we're going to use social media responsibly." That's nonsense. I mean, how is that going to stop a—a predatory person? "Oh, I've signed that pledge, so you know he's safe now." That's ridiculous. Uh, so I—I mean, I'll be honest with you, I take a very hard view, and I'm informed by some of these cases of youth pastors languishing in prison because of what they thought was innocent use of social media to communicate with girls in the youth group. So that's—that's the first issue I wanted to cover uh today. You know, one of the things that you can do is if you have a website, post it to all the fifth graders, you know, "We're going to do this," you know, instead of one-on-one. And that's what you're basically saying is get rid of the one-on-one and um let's uh communicate with either the parents, number one, or number two, put it on the website and communicate that way.

Very good. Well, let's—let's talk about a second legal issue associated with social media, and that is what I will just call litigation discovery. Anytime there's a lawsuit, uh, before you go to trial in a courtroom, there is—there are months, sometimes years, of what's called the discovery phase, where the attorneys for both sides are seeking to gain information or evidence about this case from the other party, and that can be in the form of interrogatories, depositions, subpoenas, requests for information, for documentation, etc. And of course, there are certain uh evidentiary rules that apply to whether certain items of evidence are admissible in court, and one of those rules, of course, that you're familiar with is the hearsay rule—that you can't use out-of-court statements in court to prove the truth of the statements made therein. And—but there are dozens of exceptions to the hearsay rule. One of them is admissions against interest. And what—what does that mean? That means that any statement you make out of court against your own interests is presumptively truthful because people don't go around making disparaging statements about—about themselves. So that's a high degree of uh of truthfulness, and so we're going to make that an exception to the hearsay rule. Well, the point is this: so here's the pastor—uh, he just has received a phone call from the church office, "Hey, we just got served a lawsuit today for child molestation involving so-and-so, a youth worker," and the pastor gets on some social media account and he uh tweets or whatever—uh, members of the church board, "Oh man, we got this loss; this guy, I knew he was trouble; we should have screened him; maybe we should have adopted that screening program that we were thinking about a couple years ago." Do you understand the—the negative value of that information being introduced in court? You have just uh admitted that you are—that you're liable, that you are negligent. And so that's just one example of how social media is being harvested today to come up with incriminating statements or admissions against your interests that can be used against you in court. It is a fertile area of litigation today, and uh, so just—you've got to be so careful—think before you make any comment using social media as to the potential uh ramifications of what you're saying. What we've seen actually—there's been actual court cases where we're seeing that the social media is what's convicting the people; nothing else but what—it—what you know, people have taken pictures; everybody has a phone; everybody can video from a phone, and they can actually take pictures of what's happening, and uh, that happens quite often now. So let's go to number three. Number three is uh using social media to post personally identifiable information about minors in your church. Yes, look at our church Facebook account; look at all these children. Well, there's little Johnny uh Olsen who uh lives at such and such an address, and here's his phone number—uh, he just had some accomplishment uh in the community or maybe in church—maybe an award given to him in church. And I have seen this all the time on church websites or church Facebook account pages where uh there is information—personally identifiable. And what do you mean by that? Information by which some outsider can—can have contact with a minor. Now what—what is the problem with that? Well, there's many problems with that; let me just mention two of them. What about the worldwide pedophile community that is predatory, constantly looking for access to minors? Here is a church that provides it on a silver platter for us—or—that—that's one thing. Another one is this: non-custodial biological parents having access to that information to know where their child is; maybe there's a court order barring that from happening, and these people are obsessed sometimes to—to regain access to their child. They think they've been disserved by the legal system, and there's been an injustice that, "I wasn't given custody of my child, my minor child," and they're looking for ways to get—regain access, and here—here's my son right on this church website with his personally identifiable information, his name and contact information—unbelievable. So those are uh two ways—two ways in which uh using social media to communicate information about minors can really be detrimental. One of the things that we suggest is actually again respecting confidentiality; don't post birthdays; don't post phone numbers; uh, don't post the kid's school email addresses—email addresses. And then actually, if you're going to have pictures of anybody on your website, have permission from those people to use those pictures, or their parents, or their parents' permission if they're—if it's a child. So uh, yeah, you know, it's amazing; I was looking at—there was a study done, and 68% of all websites violated some form of that information. So if you've got—you know, just think about it; look at your website. It's one of the things we're going to talk about is coming up with a plan for a social media plan—uh, you know, you need to monitor your website; know what's on there, and you need to know what you need to get taken off there to make you more respectful.

Well, let's talk about the fourth issue uh regarding social media use, and uh, that—that is uh talking about church. Many churches have uh Facebook accounts now, and they use them for various ways—for example, to communicate with members, and that's fine, but there are a number of issues associated with church Facebook accounts. Let me just mention three of them quickly. Uh, the first would be defamation. This is not common, but it does happen all too frequently, and that is uh there'll be an internal church dispute over power—over who knows what—I deal with these all the time, and they're so petty when you're an objective outlier like myself looking at this, and I just can't believe that churches can be engaged in these things—these disputes, but they become quite emotional, and it's possible for maybe a church staff member to use the church Facebook account to make some very disparaging—really defamatory—statement about one of these dissenters. And uh, yes, defamation can happen on a church website. Number two, confidential information that is disclosed on a church uh Facebook account or social media account—such as what? Well, what about, "Hey, let's use our church Facebook account to post prayer needs"? Yeah, here's uh so-and-so that has uh some psychological disorder—uh, is bipolar, is having problems this month—uh, the meds aren't working, you know, you need to keep them in your prayers. I look at these things; I say, "Use common sense"—uh, that's confidential information to the world. And—and so uh, that—that leads to the third thing, and that is invasion of privacy. Invasion of privacy means many things, but one of the things that it means is public disclosure of private facts in a way that would be uh outrageous or uh unreasonable to a rational person—to a reasonable person. And—and so there's a lot of ways in which churches can invade privacy unintentionally by uh by a—by some social media uh venue that—that—what should I say?—it discloses confidential information—private facts about people. And the classic example, as I say, would be a prayer list where you are identifying people with their individual—with their infirmities and without getting permission to do so. I mean, that—that is a classic example of what potentially could be um an invasion of privacy. So that's some—some other ways.

Let me mention the fifth issue, Jerry, and that's intellectual property on the church website—utilizing pictures, text, articles that you've obtained from the—from the web—from the internet without permission. So this is a fertile ground for copyright infringement—is uh would be church website. You see this all the time, not just with churches but with other social media as well. You've got to be very careful; not just attribution—saying who's the author or you know who's the—where do we get this—that—that does not excuse copyright infringement. You have—if you're going to be using copyrighted material, you've got to get permission to do so.

You know, let's just talk a little bit about having a social media policy and some other things we can do because we've actually talked a little bit about Facebook accounts with churches, Twitter—twittering. We've talked a little bit about YouTube, but what we haven't really talked about is a lot of people have a personal Facebook account or they do personal blogging and stuff, and so many of the times it could be a pastor or an employee that works for the church, and um they're talking about things that are happening at the church that could affect the church, and the church has no idea that this is actually happening. So one of the first things that we would suggest is that you document all current and intended—and intended—social media use, so you know what is out there and how people are using it. Um, if you allow personal sites, which I don't think you really can get away from not allowing personal sites, but if a person—you know, let's say you have a youth pastor that has his own personal site, I think it's wise for them to have a disclaimer on there that—that this is their personal site and everything is their personal opinion and it is not read or approved by the church, and the information expressed does not reflect necessarily the views of the church.

You know, Jerry, that's—that's right, and that's reminiscent to me of the whole issue of political discourse uh by churches and church leaders, and the IRS has been very explicit on this—that—that pastors can make political statements; they can endorse candidates as long as they're doing so in a strictly individual capacity—not using the pulpit, not using church publications or church media—and emphasizing that they're doing so in their individual capacity as a citizen, not as the pastor of this church. And that kind of cuts off the attribution to the church, but if there's any ambiguity there that can be viewed as having been a statement by the church through its agent, the pastor, and I think that's what you're getting at there in a related—in a different context, but it's a related issue.

Absolutely. One of the other things that a church could do is implement safeguards. So you know, um, in our office, actually, we found out that a lot of time was being wasted uh with people being on Facebook. I think you mentioned as we were getting ready for this, you know, people Facebooking you and saying, "I'm having Burger King for lunch now." Um, why—so interested? Why is some of you out there—don't send me what you had at Burger King, you know? So you know, I don't care. You see that, and you're going, "What a waste of time!" And most of these people you're paying for their time. So we've actually implemented safeguards at our office where we have Facebook and YouTube on one computer, and it's the middle of everybody because actually a lot of churches do have their websites via Facebook; a lot of people uh put their sermons—you can see their whole facility on YouTube with the video that they've shot at their whole facility. So we—we—we've kind of taken it away from everybody but put it on one—in one area. So implementing those safeguards—well, that's—that really is my sixth item, and that's time management. Apart from the legal issues uh which we're focusing on today, there's also a time management component here of the wasted time on these social media sites where people can spend hours a day. I—I think back to uh Homer's Odyssey, written in the seventh—eighth century BC; my mother read that to me in Greek when I was four, and I—I—I think of the—the—the stories of the—when Odysseus is sailing back to the island of Ithaca in the Aegean to reunite with his wife Penelope, and he encounters all those trials and tribulations along the way, including the island of the Sirens where these women would sing such in beguiling music, and—and so he had wax put in the ears of his crew, but for himself he didn't, and he had himself lashed to the mast so he could hear it himself and yet not succumb to it—or the island of the Lotus Eaters where people just sat around consuming poppy blossoms and it being in a perpetual state of intoxication—kind of reminds you of American higher education—but—but the point is, isn't social media doing the same thing? It's—it's the island of the Lotus Eaters; it's the island of the Sirens in—what—what entreating us to participate in these activities that are totally mindless and non-productive. And—and what's the relevance of that? Well, it's the church staff—are our people on your staff spending hours a day on social—on social media? So there's got to be some—some monitoring and oversight—accountability when it comes to that as well. But let me mention the seventh out of these eight uh issues I wanted to cover today, and that would be the fact that I just read this—read a—a survey just yesterday; it's just amazing to me, and this shows you again the dynamic nature of this area of law. There are probably—I didn't count them, but there's got to be at least 30 states now that either have laws on the books or have laws that have been proposed that are under consideration that prohibit employers from using employee social media accounts for adverse employment decisions. And uh, so that typically involves the uh application for employment process. You know, here's—here's somebody that's seeking employment with our church or facility, and uh, can we request that person's social media passwords, user names so we can do some examination here to see the—to test this person's suitability and fitness? That is against the law now in a growing number of states. So the point is, don't do that without seeking legal counsel to make sure you are under—you're aware of what legal restrictions may apply in your state. And kind of a related issue, Jerry, number eight—hey, we made it to number eight—is uh the—the National Labor Relations Board—the NLRB—issued a—a—a ruling uh—uh late last year. You say, "What does that have to do with us?" That's for union activity. Well, that's true predominantly, but the National Labor Relations Act also has application in some context outside of unions and to non-profit organizations which typically are not unionized; certainly that's true for the vast majority of churches, although some church agencies are, but the vast majority of churches and church agencies uh are not uh unionized, but still there're aspects of the National Labor Relations Act that applies to them. And here's—here's the—the latest uh clarification of how this can apply to churches. There was a ruling uh late last year that said that it is a violation of the National Labor Relations Act; it can be uh for an employer, whether unionized or not, to take an adverse employment action against an employee for making disparaging or critical remarks on his or her own social media account with regard to church practices or church leaders. So that—I just want you to understand that that applies to churches with certain exceptions, but—and I think you need to assume that it does. And so the point is this: don't terminate an employee for making disparaging comments about the church—church leadership, church policy, church practices—on his or her own social media account without seeking legal counsel to make sure you are compliant with the law. Very important point; very recent point; again indicating this is a dynamic area of the law that you—we have got to stay tuned uh with regard to. So I'll be doing an article uh in an upcoming issue of my Church Law and Tax Report, kind of bringing you up to date on the current status of the law, talking about these eight factors plus a few more that uh are implicated anytime uh we're talking about social media in the co—in the context of churches or church—church staff. Let's look at—let's look at one of the—one of the questions we have: "Is it okay to post a sermon of an evangelist who spoke at a church on our website?" Same thing—we might have music from other people uh that they're playing on their website.

Yeah, what leaps to my mind are the copyright—intellectual property issues. What is—in—was that just a sermon that you cut out all the music before and after?

Uh, that's the—the main issue there, Jerry, as you know, is uh playing copyrighted music. Uh, so if you're going to include the entire service, including the performance of copyrighted music, then you've got to be sure that there's proper authorization, either through a license that the church holds uh or directly from the music publishers themselves, which is usually rather cumbersome to do, and of course that you obtained permission from that speaker uh to uh to put that on your social media site.

Excellent. So actually, when it comes to—when it—when it comes to it, I'm just going to kind of summarize here, but we want to document current and intending social media use; we want to implement safeguards where we can; we should—

Train, uh, pro-train our employees and people on improper and inappropriate actions in regards to social media. We need to monitor our website, and we need to look at other social media to know what's being said about us. Also, you know, Jerry, and to our viewers, I'll tell you, when I look at these eight things that I've gone through today, this is invaluable information. But the first one that I mentioned, in my opinion, towers over the other seven, and that is the inappropriate use of social media.

First, for nefarious reasons: it's the youth pastor, male, having sexually explicit communications with adolescent females in the youth group. That's where I think the—or potentially a teacher having sexually explicit or soliciting communications with children in the church—and that's where I draw the line. I, I just think that that is such a significant issue. We have got to not manage that risk; we've got to eliminate that risk. And the only way to do that is banning those communications.

Now, again, some of you are going to say, "Oh, there he goes again; that's over the top." So be it. I'm guilty; I accept that judgment. I view Jesus' harshest words were directed at people that would cause one of these little ones to stumble. And here we have an opportunity to protect, certainly, children from imposition from inappropriate behavior and action. Who would call a ten-year-old to say, "How you doing? You're in my Sunday school class; I want to see how you—" It's inconceivable. Why would we allow them to use social media to do the same thing? So be very aware of the risks involved with the use of social media in this context. And again, as I say, I know of at least three, and I'm sure there's many, many, many more, but just those three cases I read on the same day last year involving youth pastors, different states, different scenarios, languishing in state penitentiaries today for five-year sentences because they sexted with girls in the youth group. They are finished for life. Would you want to hire one of these guys on a sex offender registry for years, if not for life? I don't think so. Their lives were ruined by what they thought was an innocent practice. And so you need to get control of that and make sure that you impose appropriate restrictions that are enforced, and that is a dismissable offense to violate them.

Well, Rich, once again, we're out of time, but we covered a lot of information in a short amount of time. Again, I appreciate your time, and we look forward to seeing you next month for Risk Management Live. Thank you.