First came blogs. Then Facebook. And now Twitter. Although these communications and networking channels were once used mainly by individuals for personal purposes, they are increasingly used by companies across the country. Law firms have even joined the action by using blogs and creating Facebook pages. Large, national companies such as McDonald's and Google have created corporate Twitter and Facebook accounts. These tools appeal to companies because they permit the companies to communicate with their employees, customers, and other constituents in a direct, informal, and participatory way. At that same time, corporate-sponsored blogs, Facebook pages, and Twitter accounts have the potential of creating significant legal risks. Companies that anticipate these kinds of problems ahead and plan accordingly will reap the benefits of these new forms of communication by reducing the risk of litigation. Among the legal issues raised by blogs, Facebook, and Twitter for corporations include the following:
1. Defamation and Privacy Torts and Intellectual Property Infringement. Companies may face liability if their employees post content to the corporate blog, Facebook page, or Twitter account that defames or invades the privacy of third parties. Posts that include a third party's intellectual property, such as copyrighted material or trademarks, may expose the company to liability for infringement. As an example, baseball manager Tony LaRussa recently filed a complaint in the Superior Court of San Francisco alleging that the twitter.com/Tony LaRussa site contained unauthorized photographs of him and written statements made by La Russa when in fact they were not. Based on this, La Russa contends that Twitter is liable for trademark infringement, false designation of origin, trademark dilution, and cybersquatting among other claims.
2. Trade Libel. False or misleading statements made either through a company blog, Facebook or Twitter account about the goods or services of a competitor that cause or are likely to cause the competitor harm may be grounds for trade libel action.
3. Trade Secrets-Inadvertent disclosure through a company blog, Facebook page, or Twitter account of company trade secrets can easily destroy the “secret' status of such information, rendering it ineligible for trade secret protection and could expose the company to liability for trade secret misappropriation.
4. Employment issues. Companies may take appropriate action in connection with employees who spend excessive work time on personal blogs, Facebook, or Twitter or who engage in conduct that is harassing, discriminatory, or potentially violent on those sites.
B. What management can do to minimize the risk of abuses of social media?
To minimize the risks, companies should carefully consider their strategy with respect to these novel forms of communication and take proactive steps to minimize potential exposure. Such steps may include:
- Creating a written policy for employees that sets out clear guidelines for using communication and networking tools to raise awareness about possible pitfalls. Companies may wish to have separate guidelines for employee's discussion of the company in their personal blogs, Facebook pages, and Twitter Accounts.
- Establishing terms of use and posting appropriate disclaimers that limit the company's liability for third-party statements and other claims.
- Regularly monitor the communications for content that violates terms of use, employee policies, or applicable laws. Surveying company communications practices periodically and conducting training or information campaigns regarding what social networking practices will be supported and those that will be considered unacceptable.
- Taking the steps required to qualify for the safe harbors available under the Digital Millennium Copyright Act.
- Ensuring that any personal information gathered from users via the corporate blog, Facebook page, or Twitter account is handled in compliance with applicable privacy laws and the applicable privacy policy.
- Archiving communications content in a well-organized and readily available form.
As social media tools become more and more common, you must anticipate that your employees will use them at work. In addition to those existing guidelines, companies need to enact social media guidelines that cover the following areas such as boundaries, transparency, confidentiality, financials, consequences, and work use. Twittering and tweeting are new and exciting tools in the dawning age of social media but let's not forget that such twittering could you leave you twirling in your own tweeting if proper precautions are not enacted. The Katz Law Group has deep experience in this area. Call us at 508-480-8202.
