Over the last several years, social networking websites like Facebook, MySpace, LinkedIn, and Twitter have evolved to the point where most employees use at least one, if not several, of them throughout each day. Social networking sites provide an easily accessible medium for individuals to stay in contact with friends, colleagues, clients, prospective clients, and the public at large.
People can create their own “personal brand” and connect with hundreds, thousands, and sometimes even millions of people who visit the Internet on a daily basis. With Twitter, for example, a person can offer almost instantaneous commentary on the “news” of the day, whether it’s personal, professional, communal, or political, all with a couple of keystrokes and without any filter.
In conjunction with social networking sites, employees (and seemingly everyone else) have taken to blogging to record their thoughts, impressions, observations, and opinions on webpages that can be accessed from virtually anywhere in the world. With the good comes the bad, however, and unfettered employee access to social networking sites, blogs, and the Internet presents a myriad of problems for employers.
Legal issues and concerns for employers
Employers need to be diligent to protect their company’s interests from disclosure or infringement by employees who use social networking sites or blogs. Blogging in particular poses the greatest potential risk for employers and presents the greatest need for employer control.
A blogger prepares entries and posts them on a webpage precisely so others — including strangers — can read them and even comment on or discuss them further. The blogger’s posts remain in cyberspace indefinitely, ready to be discovered by wandering eyes after someone has searched the Internet using keywords that locate the blog entry. In a flash, the fleeting complaints of yesteryear transform into a record that may be accessed by a competitor or government regulator or read by a coworker or manager who was criticized or ridiculed. Or the blog could be viewed by a recently interviewed candidate who is deciding whether to accept a job offer, or by an executive of a company involved in negotiations to buy your company. In the end, you must thoughtfully and prudently respond to what your employees elect to do in cyberspace.
Employers must also seek to protect confidential and proprietary information vital to their business: business plans, new products or services, customer and client information, financial results (particularly for publicly traded companies and those involved in sale or merger negotiations), and trademarks and service marks. The list of confidential and proprietary information varies by industry and employer, but the need to trust employees and ensure they are maintaining those confidences is common to all employers.
Employers also need to protect their, and their employees’, reputation from embarrassing or offensive blog posts or the projection of an image they don’t want to be associated with (e.g., white supremacy or sexual perversion). Finally, employers still have an interest in maintaining employee morale and discipline despite the proliferation of employees’ use of social networking sites and blogging. You must ensure that bloggers and social networkers don’t challenge the authority, competence, or personal qualities of managers and coworkers or engage in harassment or disparagement of coworkers.
You can face potential liability from employee use of social networking sites or blogging in a variety of ways:
- Slander, defamation, and libel. Your company could be held liable if an employee posts negative statements about another person or a competitor on a website or blog.
- Trade secrets and intellectual property infringement. The disclosure of certain trade secrets can destroy the “confidential” status of the information, and the disclosure of a third party’s confidential information could lead to an action for trade secret misappropriation or intellectual property infringement.
- Trade libel. Misstatements or misrepresentations about a competitor could lead to claims of trade libel.
- Securities fraud and gun-jumping. Publicly traded companies can face sanctions for securities fraud if material misrepresentations are posted. Any postings plugging the registered company could violate federal securities law.
- Employment actions. Employees may try to sue you for wrongful termination or discrimination if their employment is terminated because of postings that reference personal aspects of their life (e.g., marital status or sexual orientation).
- Harassment. Language that is harassing, discriminatory, threatening, or derogatory could prompt a lawsuit.
Learn more about employment law, human resources practices, and social media at the day-long HR’ s Social Media Virtual Summit
Adapting to the new digital media
The rapid growth of social networking and blogging means employers should revisit their electronic communications policies and evaluate whether they are sufficient to cover this new form of media. Because social networking sites present new issues for the workplace, it won’t be sufficient to rely on an old e-mail policy in most cases. Your approach to drafting a policy that covers social networking will depend on the benefits, risks, and needs of your company. While some businesses will ban access to all social networking sites, others may find that it’s advantageous to allow employees access to certain sites or even to create a company webpage on a social networking site.
Companies should tailor their policies to fit their needs. One thing to consider is how to regulate what an employee writes about your company on his profile page or blog. Some companies have instituted policies requiring employees to identify themselves when discussing the company in any public forum (including online forums) to notify readers that they are speaking in an individual capacity, not as a company representative. Other companies, however, may impose strict discipline on employees who post anything about their employer or coworkers.
Set forth your expectations and rules for Internet use (whether it occurs off-duty or at work) through an appropriate policy. Your policy may be part of a broader policy that addresses all media, including e-mail, instant messaging, Internet browsing, and using social networking sites. A clear policy on Internet use should, at the very least:
- Include a specific statement of what is prohibited on employee profiles or logs.You may want to prohibit some or all of the following:
- disclosing confidential or proprietary information;
- disclosing the name of the business in personal websites or purely social networking sites except professional networking sites (e.g., LinkedIn);
- revealing the name of the company on a site with sexual or violent content;
- using the company’s intellectual property (e.g., trademarks);
- infringing on the intellectual property rights of others;
- making statements adversely affecting the company’s interests or reputation;
- criticizing customers or other important business partners;
- making statements supporting competitors;
- issuing defamatory, harassing, or disparaging language;
- issuing content that violates the law (e.g., obscenity); and
- writing or commenting on content that would constitute a violation of any other policies, rules, standards of conduct, or requirements applicable to employees.
- Include a clear statement of what is permitted only with prior approval from the company, such as blogs or postings that imply employer sponsorship or support, use any logos, trademarks, or service marks, or use company time, facilities, supplies, or resources.
- Identify required disclosures, disclaimers, and endorsements , if applicable; and
- Describe inappropriate content, with examples as necessary. Clear direction will certainly help you allow employees to engage in social networking or blogging while retaining the ability to properly monitor and control their computer use.
Whether your company uses social networking sites or not, you need to be aware that your employees are unquestionably using them. Reexamine your electronic communications policies to protect your confidential information, reputation, and trade secrets and ensure that you’ve addressed social networking sites and blogs. That will help protect you against liability and litigation (from both outside and within your organization) resulting from an employee’s Internet postings.