Social Media in Business: 8 Steps to Legal Compliance

Ready or not, your business’ online presence is becoming an integral part of your marketing plan, business strategy, and human resources program. To successfully navigate the legal and regulatory issues that govern the use of social media by your company and your employees, consider these eight recommendations for social media compliance:

1.Implement a company-wide social media policy:

“Obviously, employers would rather not be faced with the unpleasantness of chastising employees for spending excessive amounts of time logged onto social media sites at work, or with the nasty business of considering whether to terminate a frustrated employee who simply failed to think through the implications of posting confidential or negative information in a public forum. A social media policy which clearly establishes guidelines and boundaries, and is unequivocally communicated to employees, enables employees to anticipate company expectations and thereby prevent such predicaments in the first place.” (Managing Employee Use of Social Media by Schwell Wimpfheimer & Associates LLP)

2.Tailor your policy to National Labor Relations Board guidelines: 

“In its most recent effort to draw lines on the self-described ‘hot topic’ of the ‘lawfulness of employers’ social media policies and rules,’ the National Labor Relations Board’s Office of General Counsel has taken the position that many policy provisions commonly seen in employers’ social media policies violate the National Labor Relations Act (NLRA)… With careful drafting and the use of examples and limiting language, employers should still be able to achieve their objectives of gaining reasonable control over the Wild West of social media content while staying within the parameters of the NLRA.” (NLRB Report Challenges Validity of Many Commonly Used Social Media Policies by Littler)

3.Train your employees on the use of social media: 

“Even if only one person is in charge of communicating on behalf of the company, training of all employees is recommended because it may not be practical to completely restrict social media activities to just a few individuals in a large organization. Proper training for employees includes providing regular updates to all parties regarding current issues as well as the reinforcement of standing policies.” (Play by the Rules and Stay out of Trouble: Some Tips for Public Companies Engaging in Social Media by Snell & Wilmer L.L.P.)

4.Enforce transparency across all aspects of your company’s social media activity:

“So when your company’s receptionist writes on her personal Facebook page a glowing review of the new product your company launched, do you have anything to worry about? The short answer is ‘yes’… The issue with your receptionist posting a review on her Facebook page is that there is a connection between the endorser, here the receptionist, and the seller of the product, here your company, that might materially affect the weight or credibility of the endorsement. When such a connection exists, it must be disclosed.” (An FTC Violation in One Hundred and Forty Characters (or Less) by Alan Hartman)

5.Disclose your practices for capturing and tracking data:

“The single most important thing companies can do today is review their online data tracking and retention policies to ensure they are fully disclosing all types of data they are collecting, telling consumers what they are doing with such data and ensuring the data is protected as carefully as possible.” (Social Media and Online Advertising: What You Keep and Don’t Disclose Can Hurt You by Fox Rothschild)

6.Prepare –and rehearse—a social media crisis plan:

“Even in the best run organisations, incidents will still happen. Plans need to be put in place to enable a quick response. The best time to plan for action is before an incident happens, not when one takes place. When an incident occurs, you must plan to act… Responding to incidents will need a multi-disciplinary team, possibly involving people in HR, marketing, IT and compliance. To be effective, the plan will also need to be rehearsed. Plan rehearsals are an increasing feature of data regulators’ guidance and are a wise precaution – in the heat of the storm there is often little time to assign roles and responsibilities.” (Chinese Whispers: Partner Jonathan P Armstrong of Duane Morris discusses how to tackle the regulatory risks of social media by Duane Morris LLP)

7.Upgrade your insurance coverage:

“What is not keeping pace with this exponential growth appears to be companies making sure their social media activity is covered by their current insurance policies… The majority of companies are still in the process of implementing social media policies, and communicating them to their employees. An even larger number of companies need to update their document retention policies to address their social media activity.” (Why Social Media Activity May Mean Updating Your Insurance Coverage by Sheppard Mullin Richter & Hampton LLP)

8.Monitor online conversations about your business:

“If a business is finding itself the target of negative reviews that sound remarkably the same, or reviews that point consumers from the business to its competitor, then there is a good chance that the business is the victim of unfair and deceptive advertising practices in violation of the FTC’s statutory prohibitions.” (Before You Hire That Online Reputation Manager, Consider Your Legal Alternatives by Sheppard Mullin Richter & Hampton LLP)

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Further Reading:

• The Fallout from the Latest NLRB Salvo on Social Media (Pullman & Comley, LLC)

NLRB Report of the Acting General Counsel Concerning Social Media Cases – Jan 2012

NLRB Offers Additional Guidance on Social Media Issues, Continues to Expand Employee Rights in Social Media Outlets and to Scrutinize Employer Communication Policies (Franczek Radelet P.C.)

Why Every Business Should Have A Social Media Policy (Sheppard Mullin Richter & Hampton LLP)

Socially Aware: The Social Media Law Update – Vol. 1, Issue 3 (Morrison & Foerster LLP)

A Lawyer’s Guide To The Top 13 Social Media Issues (Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger LLP)

Company Use of Social Media Best Practices: Checklist (Practical Law Company)

Managing Legal Risks in Social Media (Glenn Manishin)

FTC Guidance On How To Incentivize Bloggers (Bryan Cave)

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