Facebook, LinkedIn, Twitter, Snapchat and other forms of “social media” not even conceived of yet are transforming the way parties communicate, and the law is slowly catching up to new technology. As a result, your business should continually monitor and consider how it and its employees, customers and vendors communicate and use social media.
Law enforcement, investigators and lawyers have long known that searching social media often yields usable evidence for an investigation or court proceeding. Social media users often tend to overshare and make damaging statements. One picture posted on Facebook showing someone at a party with a red plastic cup in his hand may be sufficient to impeach his sworn testimony of sobriety.
Your business should have policies regarding the use of social media, and what is acceptable for employees, agents and others to post regarding your business. Confidential, proprietary and trade secret information should be guarded, and those who use business devices or websites should be instructed on acceptable content and use. You should also be mindful of where information posted on your business’ social media may end up, and how it could be used. Sarcasm and humor on social media are often viewed as arrogance or contempt. Common law concepts of defamation, protection of trade secrets, unwarranted disclosure of private information, and placing parties in a false light have all been applied to social media content.
You should also consider what policies you have regarding viewing employee social medial posts, particularly on their own websites, Twitter feeds, Facebook accounts and elsewhere, even if they use company devices. The NLRB and some courts have found that employers may not punish an employee for derogatory statements made on social media regarding employers or supervisors, citing free speech protections, and some states have banned employers demanding access and passwords to employee social media sites.
Brooks, Tarulis & Tibble, LLC can review social media content and advise clients regarding social media policies and procedures. If we can assist you in this regard, please contact me.