Chris Ward, Attorney at Law with Calfee, Halter & Griswold, LLP

Emergence of Potential Legal Pitfalls

Like it or not, someone at your office is writing on “walls” in Facebook, is “tweeting” on Twitter, updating his or her blog, or is participating in any number of the other social media tools emerging every day on the Web. Whether this participation is “corporate-sponsored” or not, or whether the content posted is “personal” or not, there is potential liability out there for companies and individuals – unless companies get aware and proactive.

While many of the potential legal issues are in their early stages and still playing themselves out in the courts, some trends are developing. Lawsuits are now being filed against companies, individuals, and the social media sites themselves for defamation, invasion of privacy, copyright infringement, and trade libel, among other claims. Companies should consider issues related to potential disclosure of trade secrets, which could lead to loss of protection of such information or liability to third parties. Other legal considerations raised by social media involve employment and human resource issues, such as employees spending excessive time at work on social media sites, potential harassment or discrimination issues related to co-worker postings, company access to employees’ personal profiles, and hiring and firing decisions based on the content of social media profiles and posts.

Five Tips to Avoiding Legal Issues with Social Media

  1. Become Aware. Social media is here –for now anyway –and should be embraced by companies and professionals, not feared, and certainly not ignored. Become aware of what your colleagues and employees are doing. Ask what social media they participate in and how they are using it – professionally, personally, or both? Your awareness of the reality of social media in the workplace will then help shape your company’s tolerance for transparency as it relates to your industry.
  2. Preserve Professionalism. Professionals, such as architects, medical providers, human resource representatives, attorneys, accountants and engineers face their own unique challenges in the new social media universe. Where is the line for professionals who “tweet” or blog? Malpractice issues may arise when some professionals step past the line of participation in the social media sphere into giving actual advice to everyone – and no one at the same time -as is the case with the Internet. Professionals need to be aware of potential issues related to confidentiality, solicitation, and inadvertent disclosure of health or private client information. These issues have always existed for professional, but now we are confronted with a medium that makes it so much easier (and faster) to make a mistake.
  3. Create a Policy and Train on it. Once you are aware participation in social media at your office and have defined your tolerance level of its use, it is time to update your employee handbook to address privacy, confidentiality and harassment issues. Don’t stop there. Talk to your employees about the new policy and train them on how to comply and move forward.
  4. Remind That Perception is Reality. In online social networks, the lines between public and private, personal and professional are blurred. Remind your colleagues and employees that the mere identification of the company as your employer in their “bio” creates perceptions about the company (and the person posting) by customers and the general public. If a legal issue were to arise later, it sometimes can become difficult to separate the person from the company.
  5. Be Proactive. If people at your company are already using these tools, be proactive starting with awareness of its use and the kinds of things being written. Then discuss and define its use with policy-creation and training. Don’t overreact and de-value social media’s potential worth. Explore with employees and colleagues how social media networks can benefit the company with customers or referral sources. Protect your company first, but encourage the understanding that these tools can benefit an organization that keeps in step with the law.