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 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 melissmell 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.
Some practical and basic guidelines you should include in any social media policy are listed below. I use the term “employees” to refer to employees, affiliates and all other sponsored endorsers.
-Employment Rules and Company Code of Conduct
Require that employees always follow the terms of their employment agreement, employee handbook or other company code of conduct at all times when using social media (obviously this just applies to employees). The social media policy should restrict employees from violating the terms of any company policy via social media use for work or personal purposes.
-Broad Use Statement
You should state that the policy applies to all forms of social media, including multi-media (videos, posts or audio recordings), social networking sites, blogs, podcasts, sharing sites and wikis and covers both professional and personal use.
Employees should not disclose any information that is confidential or proprietary to the company or to any third-party. What if you have a new product or software application in development that you want to keep confidential? What about financial and other non-public information? There are a million reasons to post rules prohibiting disclosure of confidential or proprietary information on social media sites. The best practice is to define what comprises “confidential” and proprietary information and other trade secrets similar to a non-disclosure agreement and restrict disclosure. This restriction should include personal use and use on company owned sites. But be specific. Rather thanbanning any and all disclosure of confidential information, be specific about exactly what cannot be disclosed (such as trade secrets, customer information, business strategies, etc.).
-Endorsements & Affiliation
If an employee comments on any aspect of the company’s business they must clearly identify themselves as an employee and include a disclaimer. Employees should neither claim nor imply that they are speaking on the company’s behalf unless they are expressly authorized to do so. For example, you should require each employee to use the language “any views expressed are personal opinions and do not necessarily reflect the views or opinions of ABC Corp.”
All sponsored endorsers must not make any misleading or deceptive ads or claims about your products. All content must be accurate and truthful. Since you are just as responsible as any sponsored endorser would be, you need to have a clear policy on what deceptive advertising is and restrict such claims. In fact, any employee, affiliate, etc. you allow to post or promote on behalf of your business really should truly understand what is deceptive under FTC and state consumer protection laws. Your social media policy should restrict your company’s bloggers or product reviewers, affiliates and marketers against making such claim and the policy should be incorporated in the separate agreements used with any affiliates and independent marketers.
-Intellectual Property & Brand Dilution
Restrict your employees from including any company logos or trademarks on their own personal blogs or Facebook pages unless permission is granted. Similarly, they should not be allowed to upload or paste these marks onto any other interactive forum. Clearly communicate the company’s expectations and offer examples of scenarios that are acceptable and include an approved description of the company’s brand. Make it clear that individuals who link online identities with the company and disclose their employment also incorporate the approved language into their online profiles. A policy that includes the positive can help to build advocates for the brand. Trust your employees to drive responsibly if you give them the rules of the road. You should restrict employees from posting unauthorized ‘promos’ that purport to represent the company without pre-approval.
All posts and content uploaded onto any corporate blog, fan page or integrated into promotional multi-media application (i.e. a company podcast) must not violate copyright, privacy laws or be defamatory.
You should require that each of your employees seek and obtain approval before posting or adding content to any corporate blogs, Facebook fan pages, Twitter accounts, etc., and have a system in place to monitor and remove this content at all times.