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Confidentiality and Social Media: A Dangerous Mix

Litigation often ends in settlements that are memorialized in written agreements. These settlement agreements, especially in employment-related cases, often include confidentiality provisions that prohibit the parties from disclosing the existence and terms of the settlement, except to specific people such as an accountant or attorney.

A recent Florida case is an example of why litigants should take confidentiality agreements seriously.

In that case, a school headmaster settled an age discrimination case with his former employer for $80,000. The settlement agreement had a confidentiality provision. Four days after the agreement was signed, the headmaster's daughter posted on Facebook that her father had won his age discrimination case against the school, that the settlement would fund a vacation to Europe, and that the school should "suck it."

When the school learned of the Facebook posting, it refused to pay the settlement because the settlement agreement provided that a breach of the confidentiality provision would result in the return of the settlement money paid to the headmaster. While a lower court found that the daughter's Facebook posting was not a breach, the Florida appellate court disagreed because the headmaster admitted that he told his daughter that the case had settled and that he was satisfied. His daughter then broadcasted this to her 1,200 Facebook friends.

The takeaway:

  1. Settling defendants should put "teeth" in confidentiality provisions, requiring the settlement to be paid back if violated;
  2. Settling plaintiffs should strictly follow confidentiality provisions, even with close family members;
  3. Everyone should be reminded that anything posted on social media is there for posterity for the world to see.