With the explosion of websites like Facebook, Twitter and LinkedIn, in-house counsel should give careful consideration to the unique problems social media presents, how it affects the workplace, and how to address employees’ and third parties’ social media usage.
As with the rise of the Internet and blogs, existing employee and intellectual property issues play out in the social media world in sometimes surprising ways, creating new challenges and problems for in-house counsel. Social media has the capability to dramatically increase these problems and challenges by providing a much larger, well-connected audience. The following are some specific, brief considerations that in-house counsel should analyze and address with company employees.
1. Secrets are gone in a flash (or click). Even inadvertent statements or posts can give away a company’s trade secrets. In-house counsel should educate employees about how to safeguard confidential information in the 24/7, worldwide universe of social media.
For instance, counsel should make sure employees know it’s improper to post prematurely — on personal or work sites — about product launches or other sensitive information. A good rule of thumb counsel can stress: If a competitor company could use the information to its benefit, the employee should not make the post.
2. Employee posts in social media may be protected speech. The National Labor Relations Board has ruled that certain employee gripes, while made publicly in social media at the company’s expense, are protected and, therefore, are not properly the subject of employee termination. In-house counsel should remain apprised of developing case law and administrative decisions. Terminating employees for protected social media posts can lead to a suit.
3. Employee posts may subject the company to liability. False statements made by employees or paid third parties about a company’s products and services in social media and on review sites have led to claims for deceptive trade practices and false advertising. In-house counsel should communicate this risk to employees and work with the company to draft handbook rules for this issue.
4. Employee posts may prompt federal administrative action. The Federal Trade Commission promulgated regulations in December 2009 that require disclosure of any connections between an endorser and a company’s products and services. Employees who puff or exaggerate a company’s products or services — or even provide a completely honest review — without disclosing their employment relationship run the risk of subjecting the company to administrative action by the FTC.
In-house counsel can best avoid these risks by educating employees on FTC policies and warning them of the consequences of violation. Put another way, employee awareness is a great first step.
5. Social media provides an exponentially bigger, real-time audience for traditional employee-relations problems. All of the people issues facing companies — from employee discrimination and harassment to embarrassing pictures and comments at the company party — can play out in a public arena at the speed of light. Being on the losing end of an embarrassing video that went viral can devastate a company’s brand.
In-house counsel should help the company draft social media policies to address these issues. There are a myriad of online sources to turn to for help in drafting these policies, including large companies’ social media policies and trade associations’ ethics codes.
6. Using social media as a recruiting tool can backfire. The highly personal nature of social media provides potential employers ample opportunity to learn extensive personal information about employment candidates that the applicants ordinarily would not disclose in a résumé. In-house counsel should advise companies to exercise care in using this information to avoid claims for discriminatory hiring.
Limiting the amount of personal information gathered via social media and restricting who gathers it are two ways to reduce the risk of such claims. Other best practices include maintaining consistent practices for all candidates and ensuring that the person who makes the ultimate decision does not access protected or inappropriate information.
7. Registering usernames is a cost-effective, protective measure. In-house counsel should make sure to register the company’s name and key brands as usernames on social media sites. This is one of the best ways to prevent trademark infringement; it bars username squatters and other infringers from controlling the usernames and perhaps damaging the company or brand. Proactive registration is much less expensive than attempting to recover the username later.
8. Implementing social media policies is becoming a best practice. In-house counsel should be sure to include social media policies in employee handbooks or develop such policies as separate guidelines. A well-drafted social media policy can cover the concerns above and more. It should address ownership of social media accounts, usernames, posts and other content. Finding out later that an employee or independent contractor owns a Twitter handle and associated posts can be a painful lesson for a company.
9. The best defense is a good offense. Proactively monitoring brand and trademark usage in the social media space often is the best strategy to protect trademark rights. Frequently, in-house counsel can get a third party to stop using its trademarks or brand names with a simple request or by using the intellectual property policies of social media companies. This is usually a better and less expensive route than waiting and filing litigation later.
10. Social media adds litigation considerations. Social media, by its nature, is public and collaborative, and it aggregates millions of users. That’s why now, more than ever, in-house counsel must weigh public-relations considerations before commencing litigation. Typical aggressive litigation tactics may backfire and actually generate traffic to a sympathetic defendant’s social media pages.
Social media has not only opened new avenues for communications and brand marketing but also has added whole new ways to infringe on those efforts. For in-house counsel, protecting the company and the brand in cyberspace is now an integral part of the job.
This article first appeared in Texas Lawyer, a Legal affiliate. •