In this blog post, attorney Thomas Tatum, a Brinkley Morgan partner and member of the firm’s business litigation practice, informs readers about how organizations can best manage risk caused by the use of social media.
Every new frontier has its marvels and its pitfalls. While the astronomical growth of social media offers businesses and professional organizations new and exciting ways to connect with clients and the public, it opens up a number of liability concerns.
Social media, as the term implies, are inherently social. Business transactions typically are not, and therein lies the hazard. One of the most worrisome challenges of social media is the way in which they may blur the line between an employee’s professional and personal activities. Posting comments on blogs, Facebook, Twitter and other social media platforms, often in the relaxed comfort of our homes and coffee shops, encourages us to drop our guard and overlook serious liabilities that may include copyright infringement, slander, deceptive advertising, tortious interference, sexual harassment and other legal issues.
As the social media landscape continues to grow, it is important for businesses to understand the liability issues facing their organizations and how to minimize these risks.
Blogs and other social media platforms have empowered everyone to become a citizen journalist. That’s a great thing, as it supports our democratic commitment to self-expression and the free exchange of ideas. However, unlike newsroom reporters, armchair bloggers typically don’t have trained fact checkers and editors who review their stories for accuracy, attribution and potential legal challenges. This can put both the individual writers and their companies at risk.
Controversy over copyright violations, for example, has been one of the most visible debates in the evolution of social media, whether the dispute is over uploading and sharing music owned by recording companies or posting material that was published in the news media. Other types of disputes involve sexual harassment, privacy, defamation, deceptive advertising and fraud. Of additional concern to employers is the easy availability of cameras and video cams in cell phones, adding potentially damaging graphic components to employee posts.
The risk to employers does not end with their employees’ participation in social media during the work day as part of their jobs. The inter-connected, 24/7 nature of social media tends to blur the line between professional and personal. Writing or responding to other people’s comments in a non-work setting on our mobile phones or tablets, we are far more likely to let down our guard and cross the line between what is well-advised and what is not. While our attitudes may relax, our liabilities may not.
There is no substitute for good judgment. We’ve all seen public examples of the misuse of social media ranging from just plain stupid to outright offensive (think Domino’s Pizza and Anthony Weiner). But given the subjective nature of good judgment, employers may want to consider creating educational and risk management programs for social media usage while at work and beyond the workplace, addressing the issues below. Beyond these basics, it may be wise to consult an attorney who focuses on these issues and also find out what the company’s liability insurance covers, and importantly, what is not covered.
- Bring to employees’ attention that social media activity potentially makes everyone subject to legal liabilities including slander, liable, deceptive advertising, copyright and trademark infringement, harassment and other serious legal concerns. Explain the meaning and application of each of these terms.
- Outline in detail the approved roles that social media play in the company’s marketing, networking and human resources programs. If social media have no sanctioned functions, make that point clear.
- Be sure they understand that company policy refers to all social media properties, including blogs, chat groups, networking sites, e-mail, platforms such as Facebook, Twitter, LinkedIn and YouTube as well as any other less known sites. The policy should apply to all employees, including top management.
- If an employee creates a personal blog, make sure there is an explicit and prominent note that the content and opinions on the blog are strictly personal and do not reflect their employer’s opinion. Personal and professional don’t mix.
- Instruct employees never to reference clients or business relationships. The results could be catastrophic for everyone involved.
- Indicate whether employees are allowed to identify themselves as employees of the company on their private social media accounts, such as Facebook. If they may do so, remind them to represent the company and themselves professionally. Don’t assume that the distinction is clear to them.
- Caution them about airing grievances and making derogatory remarks about the company, other employees, customers, vendors or anyone else involved in the organization’s business. In the heat of the moment, social media provide an easy place to vent, but inflammatory remarks never can be recalled and may have terrible consequences.
In addition, it’s advisable to understand your insurance coverage regarding the potential liabilities posed by the social media activities of your company and its employees.
Even if a company does not participate on social media platforms, its employees’ activities in and out of the workplace may put the organization at risk. There is no substitute for good judgment, but in the real-time universe of social media, it’s best to have a clear, written policy in place.
The material appearing on this blog is meant to provide general information only and is not a substitute for nor is it legal advice to you. With regard to specific law issues, readers of this article should seek specific advice from legal counsel of their choice. Articles may not be reprinted without the express permission of Brinkley Morgan.
Remember that the hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.