First the Thought Police, Then the Lawyers: Navigating Social Media

Social media strategy can be tricky, especially when it comes to its legal implications. Here are four tips for sorting through the new issues that your company is facing on the social media front.

February 28 2012 by Nick Balletta


In 2011, we have seen social media become more of the norm for enterprises communicating with their constituencies. Social media, in many cases, is one of the primary communication tools for marketing and networking purposes. Facebook, Twitter, Google+ and LinkedIn, among others, are terms used in corporate board rooms across the globe. Companies are willing to devote considerable resources to social media and have created positions within their organizations to appropriately handle their social media platforms.

In 2012, executives will continue scrambling to advance their company’s social media footprint. They are doing so because they have been advised by their high-priced agencies. One needs a social media strategy because everyone else has one! Really? The reaction in many cases is knee jerk, and quite frankly, they don’t really have any metrics to track the efficacy of their social media plan. Agencies discuss trends, nuances and positioning, but never really apply any clear cut definition of success. It’s easy to claim victory when victory is never defined.

Tip: Establish social media metrics (or at least make the attempt) so that your team is working toward the same goal(s). Is the objective of social media outreach to better connect with customers? Is it to promote current company activities or help launch a new product? Are you utilizing social media to network or interact with industry influencers? By defining these social media metrics, your outreach will be more focused and you can more effectively measure your success.

Have companies considered the legal implications associated with social media? Although companies may institute a corporate social media policy (including the dos and don’ts of what to say, when to say it and how to communicate), this doesn’t always prevent an employee(s) from diluting the corporate message your organization has worked so hard to develop and maintain.

Tip: Implement a confidentiality agreement that supplements your company’s social media policy and Internet use policy. This will add an extra layer of protection to your social media guidelines to help safeguard proprietary information, user data and client and vendor details from being released. Additionally, it may be beneficial to assign social media responsibility to a select team within your organization. This may prevent “too many cooks entering the social media kitchen” and the potential for weakened social media messaging.

However, all employees that participate in social media activity are representing your business online. It doesn’t matter if employees are part of a social media team (or not) or indicate that statements posted on social media pages are personal versus that of the company. They are still representing your organization. For example, take the case of Dawnmarie Souza. She made disparaging comments about her boss on HER Facebook page and was subsequently fired from her position with the American Medical Response (AMR) of Connecticut. Souza made these remarks outside of the office and on her own computer.

Ultimately, The National Labor Relations Board (NLRB) said AMR’s Internet posting policy was “overly broad” and “contained unlawful provisions.” The NLRB also stated that the policy was in violation of the National Labor Relations Act, which gives employees the right to discuss “the terms and conditions of their employment with others.” In turn, Souza’s social media comments were NOT in violation of the company’s guidelines, and AMR is revising its policies as to not “improperly restrict” employees from discussing employment outside of work.

In 2012, I foresee an influx in the number of social-media induced lawsuits. As technology advances, it will be more and more difficult for the law to keep up. What speech is free? What speech is slanderous?

The genesis of social media was that the Internet created a medium for raw, unfiltered, immediate and individualistic expression of ideas. However, even with flexible and revised “policies and guidelines,” companies will remove the “social” from social media.

Tip: Strike a balance between enforcing social media guidelines and preventing social media from being a channel to interact with a broader community. You want employees to have the ability to speak freely and offer their individual insights and opinions, but not at the cost of the company’s image. Employees should be advised that if they are unsure of or have concerns about a potential posting, they should refrain from distributing online.

Organizations can’t constantly police employees’ who blog, tweet and post on Facebook, and it’s difficult to effectively enforce these policies. According to a survey by the International Labor & Employment Group at Proskauer Rose, 31 percent of companies took disciplinary action against an employee in connection with their use of social networks, while 43 percent have faced an issue with misuse of social networks. I only envision these numbers continuing to grow.

Tip: Develop a disciplinary action approach for employees who violate the social media policy and/or any confidentiality agreements. Ensure that employees are aware of the ramifications associated with defying corporate rules upon hiring and maintain consistency with implementation. If part of the social media policy states that employees cannot post during office hours, be sure to enforce this rule and execute appropriate disciplinary action.

While digital agencies continue to have a bonanza consulting large enterprises on the uses of social media, be sure to institute the appropriate social media guidelines for your business (or at least try). The agencies were making money before; now it will be the lawyers!