Lasky: Updating social media policies: the letter and spirit of the law

An updated and robust social media and blogging policy can help ensure a firm reaps the rewards of its employees' engagement activity without succumbing to unintended - and unwarranted - risks.

Michael Lasky
Michael Lasky

Social media is a part of everyone’s daily life. Agencies use a variety of social media channels – such as Facebook, Twitter, LinkedIn, Instagram, and Pinterest – to promote their clients, as well as themselves. Companies utilize these platforms to promote their own brands. Additionally, it is often expected – or at least accepted – that employees will communicate in social media and blogs about their jobs.

Potential benefits of this activity are numerous. However, it is important to be aware of the possible legal and PR dangers inherent in this activity. While firms do not want to stifle this vital tool, prudence dictates that agencies have a written blogging and social media policy that is made available to all employees. In addition, all companies should use Q4 to update their existing social media policies, given the speed at which these platforms and their uses continually evolve.

A social media and blogging policy should address the following key issues:

Employees should not post on behalf of the firm or its clients without authorization. Social media posts on behalf of the agency or its clients should be treated in the same manner as any other official communication. The firm should have a designated person or title from whom an employee should seek this approval. This process helps ensure that any social media message properly represents the firm or client and, as applicable, does not contain any inaccurate statements. Care must also be taken to ensure postings do not include any work product or confidential information or contain any elements, such as music, photos, or images of celebrities, that could infringe upon the rights of any third party.

Transparency is key. When posting about the firm or its clients, staffers must disclose the fact they work for that firm or the client, especially if the message could be considered an endorsement or testimonial. Failure to do so could be deemed a violation of the FTC’s Guides Concerning the Use of Endorsement and Testimonials in Advertising and therefore subject the firm – and potentially its clients – to regulatory scrutiny. The FTC has brought numerous actions against companies and their agencies for failure to make these disclosures or for failing to do so in a sufficiently clear and conspicuous manner. These disclosures can be made economically, such as through the use of a hashtag (e.g. #[nameoffirm]employee).

Employees should not share confidential information. Staffers should not share the confidential information of the firm, its clients, or any third party in social media. An employee who does so could expose the agency to claims for breach of any non-disclosure agreements, among other legal claims, and could damage existing business relationships.

•Staffers should not share work product without authorization. Employees should be aware that the firm (or its client) owns all work product they produce in connection with their work for the agency. Therefore, none of this work should be posted without prior authorization from the firm. Doing so could run afoul of the agency-client agreement or confidentiality obligations.

Employees should separate individual communications from official communications. When posting about their individual experiences with or opinions about the firm, employees should make clear the opinions expressed are their own, not those of the agency. Furthermore, employees should not use the firm’s logo or branding when posting in this capacity so as to avoid any potential confusion on this issue. Additionally, staffers should provide the agency with the names of any social media channels on which they post about the firm or its clients.

Staffers should be respectful of the firm, their colleagues, and their clients. When posting in social media, employees should avoid disparaging or criticizing clients in this public forum. Additionally, while the First Amendment and applicable labor laws allow employees to post about their employment, staffers may not falsely disparage the firm.

•There is no expectation of privacy. Employees must be aware they should have no expectation of privacy when posting any social media content using the firm’s equipment (software, hardware, and servers, including remote servers). This is true even when the employee is posting as an individual rather than as a representative of the agency. Moreover, staffers should be aware the firm has the right to monitor all of these communications.

Failure to comply has consequences. Although employees have the right of free expression, they should be aware failure to comply with this policy could lead to discipline, including termination of employment.

•This policy is a binding contract. Each employee should be required to sign an acknowledgement that he or she has read and consented to an updated blogging and social media policy. In addition, the terms of the policy should be considered a material aspect of the employment arrangement.

An updated and robust social media and blogging policy can help ensure a firm reaps the rewards of its employees' engagement activity without succumbing to unintended – and unwarranted – risks.

Michael Lasky is a senior partner at the law firm of Davis & Gilbert LLP, where he heads the PR practice group and co-chairs the litigation department. He can be reached at mlasky@dglaw.com.

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