Regulating Social Media in the Workplace

Social Media in the Workplace

What is “Social Media”?

What is “Social Media” anyway?  There are many people using some form of it, and there are various definitions of what the term means.  Merriam Webster’s Dictionary defines “Social Media” as follows, “forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content.”

There are so many popular services that fall into the definition of social media….  Facebook, Twitter, MySpace, Foursquare, Google+, Flickr, StumbleUpon, Tumblr, and LinkedIn, just to name a few.  Modern society is using social media services at a pace that increases with lightning speed.  Journalism.co.uk that estimates “Social Media accounts for one out of every six minutes spent online” for internet users in the U.S.

Social media networks include the following types of internet based services:  Blogs; Microblogs; Video Sharing; Photo Sharing; Message Boards; Wikis; Virtual Reality; Social Gaming; Podcasts; Real Simple Syndication (RSS); and Social Media Press Releases. The concept of social media is traced back to the 1980’s with the introduction of the “Usenet” system. Through Usenet, internet users began communicating via an environment similar to today’s online bulletin boards. The Usenet systems were maintained on servers that were managed by internet service providers, educational institutions, and various employers.

Modern technology reshaped social media, through the creation of wireless internet, and the proliferation of mobile technologies. With all the varied forms of social media readily available to end users there is more communication taking place within our society than ever before.  Estimates by Facebook in August 2011 show that 1 out of every 13 people on the planet has a Facebook profile.

 Why Regulate “Social Media” usage?

The number of users of social media networks is simply staggering, with Facebook alone having more than 700 million unique users.  According to the International Telecommunications Union, 1.7 billion people have internet access globally and no less than 40% of those are using Facebook. A recent Nielsen Report from the summer of 2011 found that 22% of online time by internet users is spent on social media networking sites.  

Moreover, according to a 2011 Network Solutions survey, the use of social media among small and medium businesses has grown over the years, rising from 12% in 2009, to 24% in 2010, to 31% currently. There are various reasons why this trend has corporations both interested, as well as concerned. 

Social media is frequently used to share current information.  Corporations struggle to deal with the vast amount of electronically stored information that they are responsible for preserving pursuant to legal and regulatory obligations.  The presence of user generated content potentially subject to disclosure in litigation is an issue that is giving risk managers, compliance officers, and in-house corporate counsel sleepless nights.  Employees post user generated content on social media networks that is possibly detrimental to the corporation. Additionally, employees may increase the potential of corporate liability through the information they share.

Potential civil litigation that can arise from the inappropriate use of social media includes a wide range of issues:  sexual harassment; discrimination; defamation; theft of trade secrets; price-fixing; antitrust violations; patent infringement; false advertising; unfair competition; intellectual property litigation; unfair labor practices; violations of privacy rights; and violations of various federal agency rules.  There are other reasons that corporations fear increased liability risk as well as other negative consequences of social media use. In late July 2011, a Symantec flash poll of 1,225 information tech executives reported that “social media incidents”, such as employees posting confidential corporate information, cost businesses an average of 4.3 million dollars.  More than $650,000 dollars of this expenditure stems from litigation costs. That’s just the beginning, though, according to Symantec, which says corporations face increasing risk of scrutiny for their social media posts.

Beyond litigation costs, corporations are concerned about lower productivity in the workplace.  A recent survey by Proskauer found that 71% of corporate respondents have some type of social media network restriction in the workplace. The same study revealed that 44% of corporations monitor the use of social media by their employees at home and at work.

Despite the increasing use of smartphone’s, and other mobile devices makes it easier than ever to access social medial networks.  Smartphone applications, and other wireless tablet devices, allow users to log into social media websites, even when that site is blocked within the corporate network. 

“Mobile is one of the fastest-growing platforms in the world. With 40% ofU.S.mobile subscribers regularly browsing the internet on their phone and a projected 12.5% of all e-commerce transactions going mobile by the end of the year, it’s a channel that you need to be aware of. According to Google, mobile web traffic will surpass personal computer traffic by 2013.” (60 Second Marketer)

Corporations also realize the impact and reach that social media has within society.  User generated content is an extremely powerful force, and consumers are increasingly likely to rely on comments they see on social media sites. According to a 2010 survey taken by the JC Williams Group 91% of respondents say that consumer reviews are the number one aid to buying decisions.  According to the New York Times, “Users say they’re more likely to buy if a business answers their questions on Twitter.” Faced with these facts, corporations are concerning management officials about the risks associated to the use of social media.

How can “Social Media” use be regulated?

It seems like an almost incomprehensible task to regulate social media use.  According to Universal McCann’s “Comparative Study on Social Media Trends”, from

April 2008, which include 17,000 respondents from 29 countries, 57% of the respondents admitted to joining a social media network.  In addition, 73% reported having read a blog, 45% of active users that used the internet daily reported starting their own blog. From the same study, 55% said they uploaded photos online, and 83% reported watching video clips.   Regulating this behavior is no easy task.

“Facebook is approaching 700 millions and Google handles over 11 billion queries per month. Worldwide there are over 5 billion mobile subscribers (9 out of 10 in the U.S.) and every two days there is more information created than between the dawn of civilization and 2003.” (from Lee Oden, Top Rank) 

Adding to the difficulty of regulating social media use, geographical regions all have different notions of what speech is protected, and what data should remain private.  Due to the complexity of the challenges that global multinational corporations face, it is necessary to have various policies for regulating social media habits.  The policies for global corporations must differ based on the location of the employees, and the applicable jurisdictional rules. The remainder of this article will focus on efforts within theUnited Statesto regulate social media use. 

The National Labor Relations Board in theUnited Stateshas recently faced a series of investigations into corporate regulation of social media.  The NLRB’s General Counsel issued three advisory opinions in July of 2011, as many of the complaints involving punishments based on an employees social media postings settled prior to having the agency issue a determination.  Based on the NLRB’s recent statements, employers may regulate certain forms of social media communication, as long as they don’t violate an employee’s free speech rights. In an article published in August 2011 by Philip Gordon, Esq. of Littler’s, entitled, “When can Employers Lawfully Fire an Employee for an Offensive Facebook Post”, some analysis of the NLRB’s advisory opinion about protected and unprotected forms of speech is provided as follows:

Protected: When the employee “acting with or the authority of” coworkers (a) “seeks to initiate, induce or prepare for group action,” or (b) “brings truly group complaints to the attention of management.”;

Protected: The employee’s activities are “the logical outgrowth of concerns expressed by the employees collectively.”;

Unprotected: The employee is engaging in activity “solely by and on behalf of the employee himself.”; and

Unprotected: The employee’s comments are “mere griping” as opposed to “group action.”

An attempt to regulate all forms of communication via social media is not permissible in theUnited States, as it would be a violation of First Amendment free speech rights. However, certain types of speech aren’t protected, free speech is not absolute even underU.S.law.  Therefore, the employer can legally impose some form of punishment for comments deemed to be inappropriate by the corporation.  Corporations have created positions to regulate the use of specific forms of social media by employees, as well as by the general public.  For instance, the individuals assigned with the tasks of monitoring comments made on corporate Facebook pages can remove remarks made by the public that are vulgar, offensive, or violate a corporate policy.  Social media analytics are readily available making it easier to monitor use.

There are so many clear examples of inappropriate social media use.  Scandals involving pictures of prominent politicians have generated news headlines throughout theU.S.  There are other lesser know examples, such as a firings of teachers for derogatory comments about their own students.   Police officers have resigned, rather than face disciplinary actions for insensitive Facebook remarks. Jurors have caused mistrials by remarks they made through Twitter.Attorneys have been disciplined for posting insulting remarks about opposing counsel on Facebook.  Professional athletes have had to apologize to commissioners of their leagues for remarks made on social media networks. There is no refuting that social media has a significant impact upon modern society.  

How is “Social Media” handled when litigation arises? 

Social media posts can be subject to discovery requests in Federal litigation, as well as under most State’s civil procedure rules as well. Social media comments are subject to production in response to criminal search warrants. There are legal regulations that apply to what information must be produced in response to subpoenas.  The revisions to the Federal Rules of Civil Procedure in 2006 have made discovery requests for electronically stored information fair game.  The precedent legal cases interpreting the revised FRCP rules establish that potentially relevant electronically stored information can be subject to a discovery request and this applies to information found on social media networks as well.

A study sponsored by Clearwell (now part of Symantec) and Enterprise Strategy Group (ESG) called “Trends in E-Discovery: Cloud and Collection” gathered statistics from over one hundred Fortune 2000 companies and government agencies. The study reveals that social media use by employees will impact discovery requests. 58% of the survey respondents said that in 2011 they think the need to manage social media applications will be a standard part of the eDiscovery, which is up more than double from 27% in 2010. An overwhelming 79% of the survey respondents named Facebook as the social media application which will effect their eDiscovery plans the most, followed by Twitter at 64% and LinkedIn at 55%.

In a press release dated February 17, 2011 Gartner’s claimed that by 2013, “half of all companies” will have faced e-discovery demands for material from social media sites. Social media eDiscovery precedent is “a patchwork,” according to Gartner, and there’s no reason to expect “clear guidance from courts or regulators in the near future.”   An article entitled “E-Discovery from Social Networks Becomes the Norm” written by Lora Bently, published in February 2011, provides quotes from Gartner’s analyst Debra Logan. “In eDiscovery, there is no difference between social media and electronic or even paper artifacts. The phrase to remember is ‘if it exists, it is discoverable.'”  

The same article by Lora Bently references a blog post from January 2011 by the law firm Sheppard Mullin about Citigroup’s pioneering program to archive Twitter data as it moves to Twitter-based customer service.  Corporations involved in the financial industry are subject to special federal regulations that pose an even greater risk for failure to preserve corporate information, and this has made the use of social media networks by such entities an increased risk. FINRA recently issued Regulatory Notice 11-39 in August 2011, in hopes of clarifying several lingering questions about retention and supervision of electronic data.  FINRA Regulatory Notice 10-06, issued in January 2010, also specifically emphasizes using technological “systems” to help conform to financial regulations. 

Archival of information from social media networks will be a challenge for corporations, law firms and governmental entities for the foreseeable future.  In April 2010 the Library of Congress announced that it is acquiring the entire public archive of Tweets.   The potential treasure trove of discoverable data existing on social media networks, which could be subject to discovery requests, continues to grow exponentially.

Governmental agencies have already begun using social media networks to interact with the public, and to provide answers to questions.  For example, the Consumer Protection Finance Bureau issued a Federal Register notice in July 2011, “The use of social media will enable the [bureau] to interact with the public in effective and meaningful ways, encourage the wide sharing of consumer financial information and the strengthening of an online community of consumers, and ensure that critical information about the agency and key consumer finance issues is distributed.”

In fact, in July 2011, the CPFB had over 6,700 followers on Twitter, over 8,700 friends on Facebook, and four videos on YouTube. The CPFB is already attempting to archive social media network communications between the agency and the public. The vast information amount of social media network information related to federal agencies increases the likelihood electronically stored information exists that will be requested in future lawsuits.

Because third-party service providers host most publicly used social media networks, the challenges of archiving such data are often complex.  The data on Facebook, Twitter and blogs is not generally stored by a corporate network…it becomes part of the “cloud” which “surrounds” the base of business. Data on these social entities belongs to the social media network. This presents a major risk since the data is not part of the in-house retention policy.  Oftentimes collection must involve a third-party, this increases the complexity of the situation dramatically.

Social media network services are frequently receiving requests for production of electronically stored information, subpoenas and court orders.  These production requests also include data that has been successfully subpoenaed after a user’s death, sometimes for evidence, and other times for closure.

There are times where third-party service providers are pushing back against subpoena requests, and refusing to provide specific content.  The Electronic Communications Privacy Act prohibits an e-mail service provider from producing a customer’s e-mail in response to a civil subpoena because it is not a disclosure exemption under the Act.

In addition, the Stored Communications Act, 18 U.S.C. §2701 et seq. prohibits disclosure of all but basic subscriber information.  Some social media networks may rely on this Act to provide only limited information in response to a civil subpoena; however this Act was not designed for social media networks, and doesn’t neatly fit their service model. There was a recent precedent established in the case, Crispin v. Christian Audigier, Inc. C.D. CA., May 26, 2010, which held that the Stored Communications Act applies to social networking sites. Furthermore, 18 U.S.C. Sec. 2702-2703 states that internet service providers can’t divulge the contents of e-mails or other electronic records, but this section of the Act does not address social media technology specifically.

There are also further limitations on the reach of the Stored Communications Act, government entities are exempt from its provisions.  The EEOC administrative proceeding against a company called Simply Storage Management, (EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010) is an example of the Act’s limited reach.  The agency deemed that all relevant social media data must be produced, whether or not it was a private communication.  Furthermore, it remains unclear if this Act provides protection against a subpoena issued by a defense counsel in a criminal case.  

Attorneys seeking to obtain access to user content that exists on social media networks must also be mindful of the ABA Model Rules for Professional Conduct.  It is explicitly stated that Model Rule 8.4 is violated if an attorney engages a third-party to gain access to another person’s Facebook page.  In addition, there have also been judicial admonitions to attorneys who have tried to “Friend” someone on Facebook under false pretense.

Collecting the data from social media is only a small portion of the challenge that this form of electronically stored information creates for the legal profession.  The Electronic Discovery Reference Model (diagram provided below) is applicable to the information collected from social media networks, just as it applies to other types of records.  Once the data is collected, it is processed for attorney review.  There are various early case assessment technologies that are utilized to assist in identifying potentially relevant materials.  There are also various technological solutions that can help reduce the cost associated with the attorney review phase of litigation.  Ultimately the electronically stored information will be subject to the attorney review process, assessing the relevancy and identifying privileged communications.  Once data is deemed relevant to the specific case, and not subject to a claim of privilege, it must be produced to opposing counsel.Attorneys that are seeking to offer the evidence in court must establish the foundation of the social media communications and comply with all the applicable rules of evidence.  This can be a costly process to the litigants, and might be time consuming depending on the volume of data involved. 

Elements of an Effective Social Media Regulatory Policy

It’s clear that corporations need to regulate social media networks. An article entitled “Why Every Business Should Have a Social Media Policy” authored by Michelle Sherman of the Sheppard Mullin, provides further insight into controlling social media behavior.  “The FTC recognized in its Endorsement Guidelines that a business cannot realistically oversee all of the social media posts by its employees, and ensure that they do not violate the Endorsement Guidelines. The FTC has stated that the employer should not be held liable in this situation if: (1) the employer has a social media policy concerning the “social media participation” of its employees; and (2) the established company policy adequately covered the “rogue” employee’s conduct.” 

Michelle Sherman’s aforementioned article goes on to provide some tips regarding effective element of social medial regulation, which are summarized as follows: 

  1. Stop and think how your post will reflect on your company and its clients or potential clients. 
  2. Assume that that your posts may become public.
  3. Cooperate with your company in monitoring the social network sites by providing a current list of the sites you are using.
  4. Be transparent. Make clear that any opinions you express are your own, and don’t associate your position at the company with your opinion. 
  5. Use privacy settings.  
  6. Maintain business confidences by not posting information that may reveal confidential information.

Ms. Sherman’s article also points out perceived negatives that should be avoided when using social media networks:

  1. No discriminatory or harassing posts.  
  2. Do not divulge any non-public private information. 
  3. Do not endorse the company’s products without having your message reviewed by the company’s marketing department, and approved for content and necessary legal disclosures. This is necessary to ensure compliance with the FTC Endorsement Guidelines. 
  4. Do not post defamatory content – don’t insult your competition. 
  5. Do not embarrass and disparage the company. 
  6. Do not violate the privacy rights of other people by posting their personal image without their permission, or sharing their personal information.

Having an established policy can help reduce corporate liability, and also provides a means for corporations to prevent employees from misusing social media.  It is important for corporations to not only establish a policy, but they must also educate employees in order to ensure compliance.  In addition, periodic training on the use of social media networks, and the applicable regulations which the corporation has put in place will also help reduce the risks of litigation, or damaged reputation.

In an article by Andrea Dechert entitled, “Employers Establish Policies to Regulate the Use of Social Media”, published in August 2010,  the author references an example of a costly embarrassment, “Last year, Domino’s Pizza faced a public relations nightmare when two employees posted a video online showing one of them violating health standards in preparing food. The video went viral and was viewed millions of times on YouTube. The employees were fired and faced criminal charges, but the damage to Domino’s reputation was severe. The incident was a wakeup call for many business leaders, says Karlee Bolanos, Esq., an attorney with Harris Beach PLLC. Employers here and nationwide have begun to set policies to regulate use of social media. “The power of social media can really impact business in a way we’ve never seen before,” she says.”

Corporations large and small should recognize that an effective social media policy needs to be tailored to the particulars of the business for which it is being adopted. In conjunction with creation of a social media policy it is advisable to consult with an attorney familiar with the laws governing social media, so an effective policy can be prepared and implemented.  As an additional resource, the link below provides published social media regulatory policies that have been adopted by 236 different corporations as of August 2011, and this should provide useful to any effort aimed at creating a policy for a specific corporation:


Source by Joe Bartolo

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