A Guide to Social Media and the Law
Let me begin this summary of our social media and the law category of posts by saying that I am not nor pretend to be a lawyer. The summary below represents the work that lawyers writing for my blog have presented to my readers. You should always consult your own corporate counsel or lawyer before following any advice here.
Once upon a time, social media was almost a free-for-all. People posted all kinds of things on these “platforms,” and few restrictions were in effect. Now, however, times have changed. Although platforms generally don’t get sued over material posted, individual users do. Human Resources departments restrict employee speech, advertisers have to be aware of the effect of marketing laws, and privacy rights are hotly debated. In order to help my readers think about legal issues, I’ve compiled a list of resources on social media and the law. Of course, as always, if you have questions be sure to consult your attorney.
Introduction to Social Media and the Law
“Free speech” isn’t always free, especially in the age of the internet. So, how do we as marketers think about advertising on social media from a legal perspective? How have problems on social media shaped law? Here are some answers.
According to attorney Ethan Wall, social media has created a legal minefield that has resulted in diverse concerns for the business community. After all, most of our legal system was designed long before social media, or even the internet, was invented. Sometimes, it’s like fitting a square peg into a round hole, but business owners still have to be compliant. Here’s a tip: your social media conduct is regulated by the same agencies that would regulate similar conduct in other forums, and with similar rules. To protect your business, be sure to know what these are, and perform adequate risk management activities. Furthermore, if anything is unclear be sure to consult an attorney that specializes in social media. They will be able to advise you on whether or not something is a good idea and help craft best practices for your business.
For this post, Wall digs into what’s probably the easiest way for companies to get in trouble on social media: advertising violations. His first example is social media endorsements, which can take a variety of forms including product reviews and influencer campaigns. In short, companies have to reveal any atypical results from a product, can’t let endorsers say anything they aren’t allowed to, and must indicate any kind of payment for an endorsement. Contests and sweepstakes are another pitfall: You’ll have to conform to all the standard FTC rules for these types of giveaways. In addition, the different platforms have their own rules that must be followed, as well. Wall recommends a compliance handbook for this type of activity. Lastly, he encourages employers to be sure that employee social media activity doesn’t run afoul of the rules, either.
Here, we’ll talk about what happens when the world of social media seeps into the workplace. In this case, we aren’t talking about the corporate profiles being used for business purposes. Instead, we’re concerned with how employees use social media.
James Wu is another attorney specializing in social media, and he asks us to think about the issue of confidentiality. This has been a sticky wicket for companies ever since social media came out, and probably even before that. After all, there’s nothing as satisfying to some former employees as spreading juicy gossip about the company. Wu introduces us to two legal cases where confidentiality was an issue. In the first, he says that the EEOC is trying to reduce the use of confidentiality clauses in routine separation agreements. Employers like these, because they keep employees from speaking out about mistreatment. However, the EEOC contends they’re illegal because it discourages employees from filing complaints against employers and spreading the word about abusive practices.
In the other case, a school principle was fired and sued for age discrimination. As part of his settlement agreement, he signed a confidentiality clause that he promptly broke. After a few years of legal battles, the settlement was reversed on appeal due to his breach. Wu points out that this second case is the kind of thing the EEOC wants to end, because when workers can admit to standing up to themselves, there’s a good chance more workers will.
Wu gives us several reasons to be careful about friending coworkers in general, and especially the boss. First, this can lead to a loss of privacy and get you fired. The example given is when someone is supposed to be on medical leave, but posts pictures of the family vacation, meaning they lied about the purpose of their absence. In fact, what you say on social media can get you fired in other ways, such as when you badmouth the company and dare them to can you for it. Second, there are harassment issues when a boss asks to “friend” a subordinate. It could be that the subordinate will feel like they’re being harassed by the requests, and with the unequal power they might seem coerced. Third, bullying and discrimination can be fueled when people know too much about their employees or coworkers. Fourth, discussing work on social media can lead to the violation of nondisclosure agreements or distribution of confidential company issue. And lastly, there can be problems when discussing work runs into doing work off the clock, opening a company up to wage and hour complaints. Wu closes by saying that it’s OK to network with bosses and coworkers on LinkedIn, but that caution should be exercised in regards to references and endorsements.
Employee Advocacy Issues
Contrary to the belief of some unscrupulous institutions, employees aren’t your property. And, just like everyone else, they have a right to privacy. How does your company balance these issues with the desire to promote itself? Here are some thoughts.
Just because someone works for you, or is involved with your company event, doesn’t mean you have the right to post their picture everywhere. As James Wu points out, some states have very strict privacy rights for employees, and require permission before publishing anyone’s likeness in print or online. Even if the state where you operate doesn’t have these restrictions, it’s always best practice to get permission before posting. Some employees have good reasons why they don’t want to appear on company promotional material. These include religious, philosophical, and personal safety issues, among others. It is essential to ensure that employees know what an image will be used for, and that consenting is voluntary.
Finally, some practical considerations. If part of your goal of posting pictures is to introduce “real employees,” you’ll want to be sure and update them periodically. After all, people leave companies and showing one who has left makes the post obsolete. Also, you should make sure that any sort of “about us” page with employee head shots is current, as well. The bottom line is that it’s OK to use employee images but be sure to get permission first and be careful with how they’re used.
LinkedIn Legal Issues
Most professionals see LinkedIn as a way to showcase their professional abilities. You’ll see pictures of people in business suits or showcasing their latest award. Whatever job skills they have, chances are that they’ll advertise these for professional gain. Likewise, companies use LinkedIn to brag about their latest achievements, announce new key employees, and recruit. Unfortunately, like all other social networks, LinkedIn has a downside. We’ll talk about one of those here.
Sadly, employers sometimes use LinkedIn to choose who to terminate, and when. Some of these reasons are obvious, but others aren’t. James Wu gives us a list of ways to get fired on LinkedIn. Perhaps the most obvious is giving out confidential information. This is easier than most people think, because some companies consider a wide variety of information to be confidential or proprietary. It is recommended that if you’re going to brag about actual numbers, then you check with HR to make sure that it’s allowed. Next, there’s badmouthing the company. You might accuse an employer of discrimination, or say that they’re a bunch of idiots, for example. Employers take a dim view of being treated this way, and will often fire people for it.
Another way to get fired is calling your loyalty to the employer into question. This could include breaking company policies about giving recommendations or endorsements, openly job hunting, or using what you’ve learned at work to outside professional advantage. Let’s unpack this one. A lot of HR departments don’t allow people to give positive or negative references out of fear of lawsuits. Openly job hunting is frowned upon, because companies like to think that employees are loyal to them and will never leave. Lastly, taking advantage of work related contacts to start your own business, or similar activities, is a breach of trust. Even if you aren’t fired, it will look bad to other potential employers after you’re gone.
Wow. That’s sure a lot of legal issues, isn’t it? For more information about compliance issues, do remember to consult your corporate counsel. Laws in your country or region are subject to change, and vary significantly.