Businesses do not experience the impact of social media in fragmented departmental silos. Rather, social media is an inherently cross-department, internal and external experience for most organizations. Employees, clients, third party providers, experts, consumers, journalists and competitors all participate in social media about your organization, whether or not invited to do so. And regardless of whether you are at a multi-national company, social media ignores borders and engages users from around the globe.
Depending on the business, the whole point is to broadcast your message as widely as possible. For others, it is an ongoing attempt to limit exposure and to retain confidentiality about products, developments or strategies.
Social Media is a People Issue
Addressing the legal implications requires the same sort of cross-discipline, cross-practice and cross-jurisdictional approach. But if social media doesn’t recognize departments, borders or realms of authority, why does it seem to be such a prevalent issue for employment lawyers in particular?
I had an interesting lunch with a partner in my firm’s Information Technology and Communications practice group last week. We agreed that legal issues involving social media tends to arise in the employment context more than any other area of law. I suggest that this is because the underlying purpose of social media is to connect people, not computers, issues, products, regulations or governments, making employment law the natural centre of gravity for social media issues.
While social media takes place on computers, it is not a computer issue. It is a people issue that flows from individuals communicating with each other about everything from what one had for breakfast to how to overthrow a government.
In the business context, problems arising because of social media use will eventually involve the HR manager who must deal with the human being that posted, tweeted or blogged out of line – or more optimistically, to reward the human being that created an exciting new opportunity for the company.
More than Messing Around at Work
In any event, we’ve moved past the basic time theft issue of people wasting hours looking at high school friends’ photos on Facebook during work hours (just discipline them as you would discipline the guy chatting at the water cooler too much).
The legal risks and opportunities of social media that impact businesses in all corners of the organization continue to grow in sophistication and diversity, notwithstanding that HR will inevitably deal with the aftermath.
Issues that businesses face include:
- revealing business and trade secrets through social media
- breaching privacy law
- dealing with negative consumer comments that verge on defamation
- meeting corporate social responsibility and stakeholder expectations through social media
- breaching anti-spam legislation through enthusiastic social media
- breaching professional regulations through social media information that has become relied upon advice
- breaching advertising and competition regulations with online communications and contests
- determining how and when evidence from social media can be preserved and used in litigation, and
- how to ensure your third party providers comply with your social media policies and strategies.
The employment issues are similarly broad:
- balancing the private and public, personal and work realms (about which opinions will widely vary depending on how old the employee is)
- balancing employee freedom of speech vs the employer’s right to manage
- ensuring workplace policies that touch on social media consider workplace culture, the organization’s branding and marketing strategies, any research and development employee agreements, general computer use policies, human rights and harassment policies, etc
- director and officer liability issues around who is authorized to represent the company through personal or company social media
- ownership of any Twitter lists, LinkedIn contacts, Facebook friends and other social media connections after an employee leaves the organization (see my post on Phonedog Noah)
- online recruitment and what to do with the juicy Facebook dirt about prospective candidates
- and at least 1,000 other issues that have come up in the social media context…
It is the cross-discipline, cross-jurisdictional nature of social media legal issues that makes the area so personally interesting. It gives me the opportunity to interact with the intellectual property, litigation and IT lawyers in the Toronto office of my firm, as well others in my firms’ offices around the globe (including participating on a panel on social media in our Tokyo office in April with a lawyers from Chicago and Sydney).
If there was ever a truly global area of law, social media is it.
For anyone interested in an around-the-world overview of social media and employment law, feel free to check out the two articles I co-wrote last fall: