In my frequent discussions with customers about the benefits of cloud archiving for regulatory, legal, and business reasons, I still find a large percentage that still don’t worry about archiving corporate social media content. Continue reading
The New York Times published a story on December 25th of this year titled: “A Dispute Over Who Owns a Twitter Account Goes to Court” raising questions around the ownership of a Twitter account that was opened by an individual who included the name of the company he was working for in his account name and posted to the Twitter account during business hours. The NYTimes story posed the question: Can a company cash in on and claim ownership of an employee’s social media account, and if so, what does that mean for workers who are increasingly posting to Twitter, Facebook and Google Plus during work hours?
The story revolves around a lawsuit filed in July of 2011 by the company Phonedog.com. The defendant, Mr. Kravitz, a writer, began posting to his Twitter account under the name “Phonedog_Noah” and over time collected 17,000 followers. In October 2010, Mr. Kravitz quit his job at Phonedog.com telling him that he could keep his Twitter account in exchange for tweeting on their behalf occasionally and Mr. Kravitz agreed.
Mr. Kravitz changed the name of the account to “NoahKravitz” keeping all the followers to the original account and began posting.
The question the New York Times posed is an interesting one but I think another question that should be asked is; what should an employee do to ensure there is no legal claim by their employer to “their” social media presence?
First, the employee should inquire within their employer as to any social media policies that exist. Most of the employer social media policies I have seen go to great pains describing what employees can and can’t post about the company and its business to social media sites. Corporate content such as upcoming product releases, sales data, and company rumors are the most popular types of restricted content highlighted. Based on this case, additional policy elements should include not including the organization’s name in the employee’s social media handle as well as not accessing or interacting with the employee’s social media accounts during work hours and from infrastructure owned by the organization.
If the organization doesn’t have a published social media use policy, then the employee should follow common sense and:
- Not post about your employers business especially confidential content
- Not post organization or staff rumors
- Never include the organization’s name in the social media handle (remember, corporate brands are valuable and most companies will aggressively defend them
- And never access social media accounts while on “company time” and from company infrastructure
Like the case mention above, if the organization asks its employees to post comments about the organization, employees should get the request in writing first acknowledging the organization will not claim ownership of the employee’s social media account is the employee does what is requested and also describing the types of comments the organization would like the employee to post. The employee will then have to decide if they want to use their social media account for organization business.
The same holds true for creating a social media account which includes the organization’s name as in the case mentioned above: Phonedog_Noah. In many cases creating a social media account with the employers name may be considered part of the employment agreement and could be considered an organization’s asset. The employee should always ask if that is the case and if the employer doesn’t claim ownership at the start, the employee should get a statement in writing stating the employer has no claims on the social media account.
A social media presence has become an integral part of organization marketing and all parties involved need to understand up front what the expectations are and who owns the asset.
You can’t control what employees do away from work on their own time and using their own equipment but companies do have a right to control their brand and that includes how they are represented by their employees on social media sites. For that reason, every organization should develop, implement and enforce a corporate-wide social media policy for all employees (because if you don’t enforce it, then do you really have a policy?).
Gary MacFadden was kind enough to pose a great question in response to my last blog posting titled “Did you hear the one about the Attorney who thought social media was a dating website for singles over 40?”. Gary pointed out that it would be helpful if I could give examples of a corporate social media policy (what it involved) and what the employee education process would be to make employees aware of the policy. With that in mind, here are some aspects of a corporate social media policy:
- A policy author with contact information in case employees have questions
- An effective date
- A definition of what social media is
- A description as to why this policy is being developed (for legal defense, brand protection etc)
- A description of what social media sites the company officially participates in
- A listing of those employees approved to participate on those sites
- The fact that any and all approved social media participations will be done only from corporate infrastructure (this is to protect approved employees from discovery of their personal computers)
- A description of topics approved to be used
- A description of those topics not approved to be used
- A description of any approval authority process
- A description of what will happen to the employee if they don’t follow the approved process
- A direct statement that unapproved employees that make derogatory remarks about the organization, publish identifying information about clients, employees, or organization financials, talk about organization business or strategy etc. in any social media venue will be punished in the following manner…
- A description of how these policies will be audited and enforced
Once the policy is developed, it needs to be communicated to all employees and updated by legal representative on an annual basis. This education process could include steps like:
- A regularly updated company intranet site explaining the policy.
- A description and discussion of the policy in new employee orientation activities.
- A printed description of the policy which the employee signs and returns to the organization.
- An annual revisiting of the policy in department meetings.
- The publishing of an organization “hot line” to your corporate legal department for real-time questions.
On a related topic, for legal reasons you should be archiving all approved social media participations much like many companies now archive their email and instant message content.
This practice will seem rather draconian to many employees but in reality the organization needs to protect the brand and always have a proactive strategy for potential litigation.
A sampling of various organizations social media policies can be found here. I was particularly impressed with Dell’s.
From a previous blog post titled ”Beware: your facebook posts could end up in court”
Social networking posters beware…your Facebook and other social media accounts may be seen by more than just your friends; in fact, what you post and tweet could become court evidence.
But many of us don’t consider these implications when tweeting and posting. Current employers, potential employers and, yes, even attorneys review social networking sites for information on workers, job candidates and litigants.
Individuals as well as organizations need to carefully consider what they post to these sites. In the personal injury case of McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), Hummingbird Speedway, Inc. sought access to plaintiff’s social network accounts, requesting an eDiscovery production of his usernames, log-ins and passwords.
The olaintiff objected, arguing that the information on those sites was confidential. Upon defendants’ Motion to Compel, the court found the requested information was not confidential or subject to the protection of any evidentiary privilege and ordered its production to defendants’ attorneys within 15 days. Additionally, the court ordered that plaintiff should not take steps to delete or alter the existing information on his social network accounts. The court said:
Specifically addressing the expectation of privacy with regard to Facebook and MySpace, the court found that any such expectation “would be unrealistic.” The court then analyzed the relevant policies of the two sites, and concluded as to both that, “[w]hen a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate.” Accordingly, the court determined that defendant could not successfully assert that his accounts were confidential. In so holding, the court also noted the possibility that communications could be disclosed by friends of the account holder with whom the communications were shared.
Organizations need to establish and enforce employee social media policies to lower their risk and better protect their brand.
A definition of the term social media from Merriam-Webster states “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.”
Another definition of “social media” from online matters reads “Social media is any form of online publication or presence that allows end users to engage in multi-directional conversations in or around the content on the website.”
Examples of social media include facebook, myspace, LinkedIn, twitter, YouTube, and WordPress (free blogging site) among many, many others. Social media is not limited to desktop computers either. Cell phones, smart phones, PDAs, iPhones and iPads are popular examples of mobile devices which can be connected to social media capabilities.
How popular is social media these days?
Facebook: 750 million plus active users (July 2011). Users spend over 700 billion minutes per month on facebook.
LinkedIn: 100 million users (March 2011)
Based on the above numbers, the social media phenomenon has become a major source of electronic data which in turn means a major target in litigation.
Social media content as a source of evidence in civil litigation has become a popular topic in legal magazines, blogs, twitter posts and other information sources. There are several challenges around social media content from the employee’s point of view and its use in litigation. Individuals tend to view social media content the same way they thought about emails and voicemails years ago – transitory, something that was private and didn’t exist for long anyway. People are shocked that potential employers are looking at the individual’s public facebook page, twitter postings or LinkedIn profile to get a better idea of a job candidate’s background or when police view the same content to help build a case against someone.
“Seriously officer, I wasn’t at that party where someone got shot…I was visiting my grandmother in Fresno”
“Really?… then how come there’s a picture of you at the party holding a bottle of Jack Daniels in one hand and a Glock 9mm in the other hand?”
Does an employer have a right to an employee’s social media content? Some qualifying questions to determine this would be:
- Has the employee mixed personal and business related content in their social media activity?
- Was the employee’s social media activity initiated from within the organization’s infrastructure or using their equipment?
In a 2010 US District Court decision, Equal Employment Opportunity Commission v. Simply Storage Management, L.L.C. and O.B. Management Services, the defendant, Simply Storage, sought to discover from two employees claiming sexual harassment against their supervisors, all photographs and videos posted to their Facebook and My Space accounts, electronic copies, or alternatively hard copies, of their profiles which includes updates, messages, wall comments, causes/groups joined, activity streams, blog entries, blurbs, comments and applications. The EEOC objected to production on the grounds that the request was overbroad, not relevant, unduly burdensome, and improperly infringed on privacy and compliance would harass and embarrass the claimants. Simply Storage defended the request arguing that the claimants’ had put their emotional health at issue implicating all their social communications.
The Court ruled that the EEOC must produce relevant Social Networking Sites (SNS) communications in accordance with its guidelines noting first that SNS content is not shielded from discovery simply because it is locked or private.
In another case, TEKsystems, Inc. v. Hammernick et al., No 0:10-cv-00819, filed in the United States District Court for the District of Minnesota, is the first-known restrictive covenant lawsuit regarding allegedly unlawful conduct via social media (in this case, LinkedIn).
When Hammernick’s employment with TEKsystems ended, she went to work for Horizontal Integration, Inc., also an IT staffing firm. The complaint alleges that, after her employment with TEKsystems ended, Hammernick unlawfully communicated, on behalf of Horizontal Integration, with at least twenty “Contract Employees” via LinkedIn, the premiere social networking website used for business and professional purposes.
The allegations against Hammernick list, by name, the sixteen Contract Employees that she allegedly “connected” with on LinkedIn, in violation of her employment agreement with TEKsystems. This case raises the legal question whether merely “connecting” with professional contacts via professional networking websites constitutes a violation of a restrictive covenant prohibiting such “solicitation” or “contact.” Does the mere existence of a network of professional contacts equal solicitation? Will compliance with a non-solicitation restriction require individuals to “disconnect” or “de-friend” colleagues, customers, or clients of former employers until the non-solicitation period expires?
Smartphones are a super highway into your private social media content
Recently, California’s Supreme Court reached a controversial 5-2 decision in People v. Diaz (PDF), holding that police officers may lawfully search mobile phones found on arrested individuals’ persons without first obtaining a search warrant. The court reasoned that mobile phones, like cigarette packs and wallets, fall under the search incident to arrest exception to the Fourth Amendment to the Constitution.
Do you have a Twitter app or LinkedIn app on your smart phone? Does it automatically enter your logon and password when you start the app? If they do then law enforcement could take a look at you private facebook, LinkedIn or Twitter accounts.
Also be aware, if you voluntarily disclose or enter your mobile phone password in response to police interrogation, any evidence of illegal activity found on (or by way of) your phone is admissible in court, regardless of whether or not you’ve been Mirandized.
Its obvious social media is a new speed bump in the eDiscovery landscape. Employers need to create policies to address their concerns and educate their employees about these policies and the consequences of not following them.