The legal issues surrounding social media have been described as a “Wild, Wild West”—uncharted territory with ambiguous and rapidly changing rules. The constant stream of information in the form of status updates, pictures, wall posts, shared links, comments, “tweets” and “likes” raises issues in realms from intellectual property to employment law to e-discovery. For in-house attorneys, the issues are complex, and as social media becomes more engrained in daily life and less frequently written off as a fad, those issues increasingly are front and center on the legal agenda.
Social media issues of interest to in-house counsel can be broken into two major categories: social media as used by businesses and social media as used by individuals. With regard to using social media to build business, clear best practices are beginning to emerge, but that’s only part of the picture. When it comes to issues related to individuals, specifically employees, a developing body of research and case law can offer guidance in several common scenarios.
Because companies can be held responsible for disparaging comments made online by employees, Wall says avoiding defamation is one of the most important reasons to craft a clear social media policy. Determining from the onset who is allowed to speak on behalf of the company through its official channels and what employees are allowed to say about the company on their personal social media accounts will help mitigate potential risk.
“Businesses should adopt a social media policy that identifies who, on behalf of their company, is allowed to talk on social media about the brand; what employees are allowed to use in terms of trademarks, copyrights or proprietary information on the Internet; and whether employees are allowed to associate themselves with the company,” he says. One of the benefits social media can provide companies is a new form of grassroots advertising in which consumers become involved interactively and help market a brand online through word of mouth. Wall cautions that, while such campaigns can be highly successful when they occur organically, a growing trend in marketing departments to attempt to manufacture these movements can backfire.
Unauthorized use of a company’s brand and image isn’t the only concern raised by social media. Experts suggest that employers should be monitoring the social media activity of both potential and current employees. To borrow a term popular among Facebook users, to “stalk” or not to “stalk” has become the question du jour when it comes to social media’s role in employment decisions. Those who oppose the use of social media in researching job candidates argue that viewing social media pages could cause employers to inadvertently discover information, such as a disability or pregnancy, which puts the candidate in a protected class, thereby creating the appearance of discrimination in the event of a negative employment decision. This “better safe than sorry” approach may reduce employer liability by avoiding exposure to such information.
He warns, however, that forcing an employee whose social media profiles are not publicly available to grant access to that information may not be prudent. Social media policies should warn employees that online activity will be monitored. And such policies should be enforced, leaving employees unable to argue that company policy was more lenient in practice. Regular and diligent enforcement of social media policies and monitoring of online activities can both protect employers against liability and allow companies to maintain strong control over the brand.
“The combination of telling employees upfront and being diligent about monitoring these activities is the better direction to go than the head-in-the-sand approach,” Browning says.
With new media come new ethical questions.
“Let’s say there’s a witness who may have some good dirt on the plaintiff and you want to get access to that person’s [Facebook] profile, but it would probably be counterproductive to say, ‘Oh by the way, I’m the lawyer on the other side of so-and-so’s case,’’’ Browning says. “Several official bar ethics advisory opinions all essentially say the same thing: It would be an ethical violation for an attorney, or for someone operating under his supervision, to misrepresent who they are in order to friend someone else on a social media site.”
Because social networking sites have long been marketed and used as a means of reconnecting with old friends, people are inclined to connect with people they don’t know, provided they have something in common, such as an alma mater. Creating a fake profile suggesting common background or finding a nonlawyer employee with such a commonality with the party in question and attempting to gain access to their account violates ethical responsibilities.
“When someone asks if we need new ethical rules to allow for these new forms of communication, I come down squarely on the side of no, we don’t,” Browning says. “The same old rules that we’ve had are equally applicable, it’s just a different form of communication. If you would not misrepresent yourself in talking on the telephone with a potential witness, you shouldn’t do it in an online context.”