The importance of utilizing social media to help any business grow cannot be understated. But, there can be serious legal consequences for businesses when their employees or affiliates and marketers use any of the popular social media forums. This can hold true both when employees are acting on behalf of your business and when they use social media for their personal use. Smart business owners identify the problems ahead of time and then devise a strategy to prevent unnecessary liability and address media clic risks when they become known. Of course, that strategy should start with an appropriate social media policy. But, many businesses draft social media policies which do not address all the potential concerns it should, or even draft policies in a manner which renders them illegal!
So, how can you ensure your business’s social media policy isn’t a dud? First, you must understand what could go wrong in social media.
What Could Go Wrong For My Business In Social Media?
Here is a broad list of legal concerns your business may face relating to social media:
-Employees who reveal confidential or proprietary information in a blog entry that can be viewed by millions of readers;
-Employees who post discriminatory or negative comments on social media regarding your business or other employees;
-Employees who post objectionable content on their Facebook pages that raises into question their character, which in turn reflects on your business; or
-Employees, affiliates and other sponsored endorsers can even subject their employers to liability by promoting the company’s services or products without disclosing the employment relationship. This is otherwise known as a sponsored endorsement in legal parlance. The FTC has made it clear that any “material connections” between the endorser and the sponsor must be disclosed in connection with a product or service endorsement, which is defined as any type of positive review. Sponsored endorsers can also potentially create liability for your business through any deceptive claims made about any products or services offered by your business.
Why A Social Media Policy Can Protect Your Business
If you have employees or use any type of third-party marketers or affiliates, you should adopt a written social media policy. Though not an absolute shield from liability, businesses must adopt social media use policies protecting the employer consistent with the company’s organizational culture. Not only can these policies serve as a strong deterrent to employees, they can be uses as the basis of terminating employees and affiliates or other third-parties.
But, What Should Your Company Social Media Policy Really Say (Or Not Say)?
Of course, your company’s social media policy should make clear to employees what the employer expects with regard to social media use, both on and off the job. These expectations may vary between companies, but employers should generally be concerned with rules against conduct that may result in unlawful sexual harassment or other liability, rules prohibiting disclosure of confidential or proprietary information, and company policies governing the use of corporate logos and other branding concerns when engaged in social media use. I’ll go into more specific details about what your policy should say below.
But, the problem every employer must understand with employee social media use is that the individual’s actions may be legally protected. Some states, for example, have laws protecting employees’ off-duty activities and political activities or affiliations. At the Federal level, the National Labor Relations Act protects employees who engage in “concerted activity,” which often includes the right to discuss the terms and conditions of their employment with co-workers and outsiders. If your social media policy has not been updated over the past two years, the policy is likely to be out of compliance with the guidance provided by the National Labor Relations Board recently. In addition, federal and state whistle-blower laws protect employees who complain about (among other things) potential securities fraud violations, in certain situations.