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:
For additional updates, please visit Lisa
Stam's blog, Employment and Human Rights Law in Canada
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