Several years ago, I published an article in the Georgia Bar Journal regarding company blogging policies. The article can be found here, at page 34: http://gabar.org/public/pdf/GBJ/feb07.pdf
When the article was published, the practice of blogging was still relatively new. Businesses were still deciding whether to allow their employees to blog about company matters, and if so what parameters to place around blogging. Facebook was mainly for college students; Linked In was in its infancy; and most people thought a “tweet” was the sound of a singing bird. In recent years, postings on Facebook and Linked In and the use of Twitter have begun to join (and sometimes replace) blogs as a preferred form of communication, particularly among younger employees. So what is an employer to do to protect its information from being broadcast via social media – while still complying with the law? This article will first address some of the characteristics that make it important to establish a company policy regarding social media, and then it will address some possible policies.
Any Policy Must Recognize the Nature of the Medium While Balancing Competing Rights of Employers and Employees.
Many of the issues that needed to be considered when I wrote the blogging article are similar to issues that need to be considered now when a company develops a comprehensive social media policy. Such a policy should encompass not just blogging but also the use of Facebook, Linked In and Twitter. Issues to consider include public relations considerations and the requirements of state and federal law. For example, employees have a duty to protect trade secrets and (sometimes) other proprietary information of their employers. But, employees also have a right to discuss the terms and conditions of their employment amongst themselves as well as to engage in other concerted activity, even where such activity may sometimes embarrass the employer. And employees have the right to socialize however they wish to do so on their own time, using their own resources, so long as their activities don’t violate any duties they may have to their employers. Any company policy governing communications by employees with members of the public should try to reconcile these sometimes competing considerations.
The Trail is Permanent.
Postings on Facebook and Linked In, and even tweets, leave a permanent trail even though they are often published without much thought. Such postings and tweets can still be recovered and viewed long after the poster has attempted to delete them. Thus, while an employee might vent about his or her supervisor, or a company customer, on Facebook with the expectation that the vents will be protected from discovery by a privacy wall, those postings can be the subject of discovery in the event that they become relevant in any future litigation involving the employee or his or her employer.
Similarly, careless disclosure of company secrets in a tweet, or behind a Facebook privacy wall, can place an employee’s job at risk while potentially causing harm to the employer. Removing the post will not actually remove it from the Internet – which means that the damage can continue long after the employee has calmed down and come to regret the posting.
Therefore, employees should be aware (and employers should remind them) that anything they choose to post on the Internet – or tweet about – that pertains to their work, could become the basis for disciplinary action unless the posting or tweet falls within a very narrow range of postings that may be considered protected speech. Employees should also be cautioned that, when in doubt about whether a posting or a tweet is appropriate, they should refrain from doing the posting or sending the tweet. Because these sorts of instructions need to balance both the employer’s rights and the employee’s rights, it is wise to seek the advice of counsel before issuing the instructions to employees.
The Nature of the Setting Can Tempt One to Post Comments Without Careful Thought.
As with email and blogs, postings on Facebook and Linked In, and tweets, can be posted without the type of careful thought that an employee might use in a less casual setting. The result can be employees permanently divulging employer information that an employee would not typically disclose in a more formal setting. This means that company information that should be kept confidential can suddenly be broadcast to a wide audience without the employee having really thought through the effects of his or her actions. And, because the trail is permanent, the employee can’t easily “take back” the posting after realizing his or her error.
Policies to Consider
An employer cannot simply ban the use of social media. Not only would that interfere with an employee’s first amendment rights and rights to engage in concerted activity, but as a practical matter such a policy would likely be ignored. Instead, the issue for an employer to resolve is whether to restrict employee use of social media to personal matters and require that such activity be confined to hours away from work, or whether to use social media to further company goals.
If the employer decides to reserve social media for employees’ personal use, then the company policy may not need to be anything other than a policy that (1) reminds employees of any contractual or statutory obligations not to use or disclose trade secrets or confidential material; and (2) perhaps bans the use of social media during the work day or while using company computer equipment or other resources.
If the employer decides to allow, or encourage, the use of social media for business purposes, then the employee should be made aware that any posts or tweets made in the name of the company are expected to be for the purpose of furthering the company’s business. The employee could even be required to set up separate business and personal accounts. Where the account is purely for business purposes, content restrictions are appropriate. The employer could pre-screen the postings, or simply set content guidelines in advance, advising employees of the consequences of violating the company’s content guidelines. The company could also adopt prohibitions against posting negative comments about the company, co-workers or company customers; prohibitions against posting confidential information and trade secrets; and prohibitions against posting offensive or obscene information. The employer should regularly monitor its accounts because it could be held responsible for any postings or tweets that are considered inappropriate or illegal or even just create a public relations problem for the company. Moreover, regular monitoring, and consistent application of company policies and punishment of violators, establishes that the company has a regular, predictable, and evenly applied policy. Such a policy is easier to enforce than one that is only irregularly or unpredictably applied.
The analysis set forth in this article is provided for general understanding only and should not be considered legal advice. Counsel should always be consulted for advice regarding a specific situation. Please contact The Myer Law Firm for guidance on crafting a social media policy appropriate to a specific business situation.