Ready or not, social media is here to stay and its very existence presents both opportunities and challenges for businesses. Social media allows businesses of all types to engage customers and other constituents in a more personal and directed manner. However, businesses that use social media need to consider potential legal issues in a variety of areas, such as intellectual property, technology, advertising, promotions, privacy, compliance, investor relations, employment, litigation management, insurance and risk management.
Even businesses that choose not to engage in social media should be prepared to address social media use by employees, customers, competitors and others, as well as issues relating to social media that arise in litigation and e-Discovery.
Among the many issues to consider:
What is your company policy on social media and how are you disseminating it to employees?
How do you train employees to use and monitor social media? What’s acceptable and what’s not?
Even if you don’t choose to use external social media, what about internally via Yammer, Chatter, or similar applications?
What responsibility do businesses that sponsor or permit posting of user generated content have to police such content? What content do you challenge or take down? When?
What level of risk is the company willing to take?
Even if your company isn’t using social media, people are still using social media to talk about you and your company. Your name might appear on Facebook, Twitter, Yelp, and similar social networking and review/rating sites. Your business might also be mentioned in blogs and online articles and in respective comments. What are the implications, and how can you take advantage of positive mentions and mitigate negatives?
Some of the issues that arise in the online world of social media are no different from those that arise in the “real” world or on the Internet in other places, and can be addressed using traditional legal methods in the applicable disciplines. Benesch’s Social Media Law Group is comprised of attorneys skilled in their respective legal disciplines, but whom are also highly attuned to new technologies, including social media.
There are a number of reasons why social media is different and requires this special attention – it is immediate, interactive and widespread, which means it is more difficult to monitor and control. It is available to everyone, both within and outside the workplace. And like the early days of email, users of social media may have a false sense of anonymity and casualness that may cause them to engage others on social media in ways they would never do in “real” life. On top of this, limitations of the technology may make it difficult for a business to invoke familiar legal protections such as including appropriate disclaimers. All of these differences raise distinct risks and challenges for businesses that can have serious negative impact if not adequately and promptly addressed.
Benesch’s Social Media Law Group is well versed in the issues businesses face in the new world of social media and is able to address them, both by preventing problems whenever possible and by developing creative solutions when unavoidable issues arise. Our multifaceted approach includes:
Conducting an audit of the client’s social media use to be sure all potential areas of exposure are identified.
Brainstorming potential issues that may arise in social media and developing protocols and procedures for handling them.
Assisting in training managers and employees in appropriate social media use and the potential pitfalls that may arise.
Assisting in training personnel who will be monitoring social media for the business.
Being on call to address individual social media issues as they arise.
Clients may choose to use some or all of these services to suit their particular needs. We, of course, also monitor current developments in the technology and the law to be sure that our clients are proactively kept up to date on social media best practices. Specific areas for which we provide assistance and counsel include the following:
Labor & Employment
Social media activity by employees creates many difficult issues for employers. The National Labor Relations Board takes the position that employees’ use of social media to communicate regarding terms and conditions of employment is protected, concerted activity in many instances, for which an employee cannot be disciplined or terminated. This creates many challenges and landmines when it comes to the preparation of policies designed to limit unfavorable or unflattering language being disseminated by company employees over social media sites and otherwise.
Another recurring issue for employers is the monitoring and accessing of social media postings by employees and applicants. Of course, there are many legitimate business reasons for doing so - protecting trade secret and confidential information, investigating misconduct, screening potential employees - to name only a few. The courts are, however, scrutinizing the accessing and monitoring of social media and its impact on privacy rights. Also to be considered is the Stored Communications Act which prohibits “unauthorized” access to certain electronically stored communications. In addition, a few states have already passed legislation specifically limiting or prohibiting employer access to employees’ or applicants’ social media activity, and both the EEOC and Justice Department are studying the issue at the national level.
In short, the law is struggling to keep pace with the technology. Whether an employer actively uses social media as a tool or not, employee use of social media has implications for every workplace. Having policies, practices and protocols that comply with current law is an imperative.
Enterprises must be careful to protect their intellectual property within various social media networks. At the same time, they must be careful not to infringe upon the rights of others. The interactive nature of social media may allow one user to post infringing content that could bring about liability, or public-relations concerns for a hosting entity. It is important to ensure that risk arising from possible infringements is minimized by taking advantage of “safe harbor” laws. Enterprises must also make sure that their personnel are appropriately knowledgeable of how to protect intellectual assets on social media networks.
Those that engage consumers through social media remain subject to all applicable regulatory standards. Federal regulators have developed special guidelines to address how consumers should be engaged online. Likewise, state-level regulatory matters affect interactions with consumers on-line. Special rules and terms also apply in connection with promotions (e.g., sweepstakes and contests) on the various social media networks. Our attorneys regularly work with Clients to ensure that on-line consumer engagement is compliant with all laws and regulations.
On-line privacy has been a hot-button issue and will continue to evolve as our laws catch up with technology. As doctors, financial-services providers and others with access to highly-sensitive information use engage their clients through technologies, specific privacy laws come into play. The collection of any personally-identifiable information from any on-line user makes general privacy laws applicable. Benesch regularly counsels clients in all aspects of privacy compliance on-line.
Publishers and broadcasters commonly seek to engage their audience personally by inviting users to post comments and other content on the publisher’s or broadcaster’s web site. Such user generated content raises emerging issues with which our team has had direct experience, including the rights and responsibilities of such publishers or broadcasters when such user generated content is alleged to be defamatory or in violation of intellectual property rights of others. While the Communications Decency Act generally immunizes the business hosting the web site from liability for defamation, the host may yet be a target of subpoenas and demands for information about anonymous content posted online.
Social media’s impact on federal and state securities regulation has been significant and is ever-increasing. The Securities and Exchange Commission has been focusing on public company and investor use of “chat rooms” and posts to interactive social media sites and potential insider trading violations. The SEC has also issued advice to investment advisors regarding recordkeeping, training and monitoring obligations with respect to social media use, even discussing issues like the implication of media plug-ins such as the “like” indicator.
The Financial Industry Regulatory Authority, or FINRA, the independent regulator for all securities firms doing business in the United States, has issued regulations regarding using social media for business development, including supervision standards for employee use, recordkeeping mandates, third party posts and links, and proper use of personal devices.
Social media presents unique challenges with respect to the obligations of e-Discovery, particularly preservation and collection. First, social media is often not under the direct control of the client. Companies may utilize popular, hosted social media sites that have their own user agreements covering topics such as who owns the data, retention policies, and liability of the parent company. Working with the owners of these sites can be challenging and time consuming. Since they receive thousands of requests per day and are not primarily in the business of servicing litigation, it may be difficult for the web host to respond as timely a fashion as is necessary. Fortunately, service providers and tools exist to allow for defensible preservation of hosted sites, often without direct intervention from the site owner or account holder.
A second concern with social media is that the content can be very volatile. Facebook posts, online reviews and comments can often be deleted on demand by the user or account holder. While this data may still exist on the server of the service provider, it becomes much more difficult to access and collect. In addition, the transient nature of this data dictates that identification and collection of potential sources of social media information take place at the onset of the matter. Given the potential difficulties in managing this type of information, the Benesch Social Media Law Group can assist with identification of data sources, preservation protocols, and defensible data collection and review.
Jury Selection and Monitoring
One of the more recent developments in the arena of social media is its use for jury selection and monitoring. With respect to jury selection, attorneys and consultants are increasingly mining social media for information regarding potential jurors. This can include information regarding the attitude and opinion of specific jurors or a more broad-based assessment of the demographics of a likely jury pool. Such data mining can provide valuable insight with respect to theories of the case, evidence most likely to be persuasive, and criteria for inclusion or exclusion of jurors.
In addition to jury selection, social media is an increasingly important source of information regarding jury behavior during the proceedings. While jurors are routinely instructed not to communicate about the case with outside parties, there have been a number of recent cases where jurors have been found to be posting about a trial on Facebook or even using Twitter to comment during the proceedings. These cases have resulted in jurors being admonished or dismissed and even mistrials being declared. It is critical to engage resources that can provide advice and assistance in monitoring this type of information and behavior during trials and other proceedings. Benesch’s Social Media Law Group is available to consult in this area and employ qualified providers and best-of-breed technologies when necessary.