Facebook recently took a more harsh tone towards Frances Haugen, a whistleblower. This suggests that the social media network might be considering legal retaliation for Haugen’s public disclosure of internal research she had done before she quit her job earlier in the year.
Whistleblowers are protected under U.S. law if they disclose potential misconduct to government. However, this protection does not necessarily protect corporate secrets from being disclosed to the media.
Facebook must still tread a delicate line. Facebook must decide if suing Haugen would be worth it. This could discourage other employees from speaking out.
Haugen could face additional consequences. Whistleblowers can be at risk of professional and personal damage.
Facebook did not respond via email to questions.
WHAT DID HAUGEN DO?
Before leaving Facebook, Haugen secretly copied a number of documents from the company’s internal Facebook pages. Her lawyers filed complaints to the Securities and Exchange Commission alleging Facebook conceals information about its negative effects.
John Tye, Haugen’s lawyer, stated that the team provided redacted documents to Congress. Haugen testified before Congress on Tuesday. California officials were also informed by Haugen. Haugen also shared documents with the Wall Street Journal that she began talking to in December . This led to an series of explosive stories that started in mid-September.
WHAT WAS FACEBOOK’S REPONSE?
According to the company, it was mischaracterized. CEO Mark Zuckerberg wrote Tuesday to employees, “I think most people just don’t recognize that false picture of the company being painted.”
Officials at some companies have begun to use harsher language in order to describe Haugen’s actions, which could be taken as threatening.
Monika Bickert, Facebook’s executive, repeatedly referred to Haugen’s documents as “stolen” in an interview with the Associated Press on Thursday. This is a term she also used in other media interviews. David Colapinto is a whistleblower lawyer who works for Kohn, Kohn, and Colapinto.
Bickert was also asked whether Facebook would sue or respond to whistleblowers in the same interview. He said, “I can’t answer that.”
Antigone Davis, Facebook’s head for global safety, had testified before the Senate that Facebook “would not retaliate to someone for speaking to Congress.” This left the possibility open that the company could pursue her for giving information to the Journal.
HAUGEN IS PROTECTED?
There are a variety of laws that offer protection for whistleblowers at the federal and state levels. Federal laws that apply to Haugen include the Dodd-Frank Act (a Wall Street reform law in 2010) and the Sarbanes Oxley Act (a 2002 law that was created after Enron collapsed and other accounting scandals).
Dodd-Frank extended protectionsfor whistleblowers, and gave the SEC the authority to take action against any company that threatens to whistleblowers. Experts say that protections are available for former and current employees.
Tye Haugen, Haugen’s attorney, stated that Haugen had gone to Congress, the SEC and the state authorities to seek protections for whistleblowers. He stated that any lawsuit from Facebook would be frivolous and that Facebook has not been in touch.
WHAT ABOUT HER LEAKS to THE MEDIA?
Although courts have not tested whether Dodd-Frank protects leakage to the media, Colapinto stated that the U.S. Secretary of Labor had determined decades ago that communications between whistleblowers and the media regarding environmental and nuclear-safety issues were protected. He claims that Sarbanes-Oxley’s language is based on earlier statutes and Haugen should be afforded the same protections for all her communications with journalists.
Facebook could claim that Haugen violated her nondisclosure agreement, by sharing company documents with media, leaking trade secrets, or by making comments Facebook considers to be defamatory, according to Lisa Banks, Katz, Marshall and Banks, who is a whistleblower lawyer for over a decade. She said that Haugen is “like many whistleblowers, it’s extraordinarily courageous and puts herself at risk by shining a light upon these practices.”
Haugen used leaks to increase pressure on Congress, government regulators and other media outlets. Colapinto stated that her disclosures were for the public interest and could make it more difficult to enforce the NDA, if Facebook chooses to do so.
COULD FACEBOOK FACEBLOWBACK BE A POSITIVE OPTION?
Facebook wants to make other employees and former employees nervous so they don’t encourage them to speak up. Banks stated that while they won’t pursue her because they think they have a strong legal case, they will send a message to potential whistleblowers about their willingness to play hardball.
She said that it would be a “disaster for Facebook” to pursue Haugen. Facebook could look bully regardless of legal vulnerabilities if it pursues a legal case against Haugen.
“The last thing Facebook needs to do is provoke the ire of government authorities and the general public by playing the role as the big bad giant against the courageous individual whistleblower,” stated Neil Getnick, whose firm Getnick and Getnick represents whistleblowers.