July 1, 2010
By Diana J. P. McKenzie, published in July 2010 in Business in Savannah.
An informal rule of thumb to apply is this: If your company has a social media policy prohibiting certain postings and the employee’s postings nonetheless casts the company, its management or customers in a negative light, or if the company’s trade secrets and strategy are being discussed anywhere outside the secure confines of your enterprise, the employee should almost always be fired or disciplined.
Likewise, use social media judiciously in making hiring decisions. Be aware that when conducting your due diligence on a potential hire via Internet searches and social media sites, information that wouldn’t be fair game in an interview (age, medical conditions, race, religion, sexual orientation, etc.), is often plainly available about the candidate on the Internet, and can be the basis for a discrimination claim if that candidate isn’t offered a job. Unscrupulous job seekers may even intentionally put this information on the Internet knowing that a company which refuses to hire them will have difficulty “proving the negative” that it never saw the information and therefore didn’t use it as a basis for its hiring decision.
E-Discovery presents a myriad of social media issues for any business enterprise. First, if your company maintains its own Facebook, Twitter, or other social media account as a marketing tool, it should be considered just as susceptible to discovery requests and litigation holds as your email server. Statements your company makes to the public, as well as the public’s feedback to you, are ripe for mining by plaintiffs’ attorneys.
If the Twitter page for your company’s latest product is covered with user comments discussing how that product has a tendency to send folks to the ER, it’s likely those posts will fit the broad scope of a discovery request. Even if you don’t own or manage the servers on which these “marketing” accounts are hosted, your company should retain records of everything posted in such accounts. Because litigants can directly subpoena social media companies to obtain these records, there’s no tactical advantage in not retaining these records – especially because doing so can allow your organization to moderate and monitor public feedback, and take proactive steps to correct potential liability issues early.
Conversely, the information posted on social media sites can also be a treasure trove for defense counsel because unsophisticated plaintiffs often write statements that are in direct opposition to the alleged facts of their claims. However, businesses should tread carefully in attempting to gather this information, as obtaining access to an employee’s or litigant’s social media posts using tactics such as spyware or creating a false identity can lead to liability for invasion of privacy or violations of the Stored Communications Act, Wiretap Act, or other state electronic monitoring statutes.
These are but a few of the potential issues that social media presents for local companies competing in today’s business world. As always, consult with your company’s attorneys or a lawyer knowledgeable in information technology law well before taking action in any of these areas.
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Diana J. P. McKenzie is a partner and chair of the Information Technology and Outsourcing Practice Group at HunterMaclean. She can be reached at 912.238.2627 or dmckenzie@huntermaclean.com.
