Legal Considerations When Using Social Media for Business with Jeffrey Gitchel

When it comes to your job or your business, who are you and who is your business? Are you the person who works at your job? Are you the person with political opinions? Are you the person you are at home, with your family and friends? Of course, you are all these people. And you hire all these people every time you hire an employee, so they all have to ability to represent and define your business. Most of the time, it feels effortless being or managing these “different people”. That ease masks one risk created by social media - that because we are all these people, personal opinions can impact an employee’s job or job performance, or your business.

Imagine, for instance, a post or Tweet regarding wearing masks. Regardless of whether it is in favor of masks or against their use, it is likely to offend or anger some segment of the population. That reaction may even be the reason for the post or Tweet.

Now suppose that the person who made the post or Tweet works in sales or marketing. Or works for a consumer products company. Even though it reflects only a personal opinion, it could impact job performance or the company’s reputation or customer base, in both desireable and undesireable ways, depending on the industry.

Jeffrey Gitchel is a business attorney with extensive experience dealing with such concerns. In this article, we discuss how to manage the challenges that individuals and businesses face in managing their social media presence.

Managing Your Personal Presence on Social Media

The simplest guideline Mr. Gitchel recommends when posting as an individual is to pause and think before you make the post. In particular, consider whether your post is clear and whether it could affect your job.

In determining whether your post is clear, it’s important to remember that online, all the people you are blend together. Suppose, for example, that there are rats in your apartment building and that you happen to be a restaurant employee. You might, in frustration, make a post saying, “I’m so fed up with these rats. The owner needs to do something about it.” This could be misinterpreted as a complaint about work by people who know you, but don’t know the context. It could subject the restaurant to rumors of uncleanliness, affect traffic at the restaurant, and an lead to unwarranted health inspection, among other things. That’s even if you later make a correction. A pause to reflect before posting might allow you to avoid the problem by clarifying, “I’m so fed up with the rats in my apartment building. My landlord needs to do something about it.”

This highlights another potential problem that Mr. Gitchel noted people can encounter when using social media - it invites casual communication because it feels informal and personal, yet can spread far beyond your immediate circle of friends and followers, with real consequences. Mr. Gitchel cautions that if you would have concerns about saying something in real life, don’t be lulled into false security and say it online. For example, publicly criticizing or complaining about a colleague at work could violate the company code of conduct or even constitute harassment. Moving the comment from the office to the internet doesn’t necessarily eliminate the risk.

If you do post about your job, be sure to comply with your company’s policy about such posts, if there is one. And when deciding if to post and what to say, assume that everyone in the company will see your post, and be prepared for the consequences.

Managing Your Company’s Social Media Presence

Companies need to manage two aspects of their social media presence - their own official presence and the presence of their employees. Each presents unique challenges.

Managing Employee Presence

The most important thing that a company can do to manage employee participation on social media is to have a policy. As Mr. Gitchel says, employees can’t meet expectations they don’t know. It is also easier to enforce a formal policy.

Mr. Gitchel identified several topics that you might include in a policy:

• General expectations - Maybe you don’t want employees commenting, even in their personal capacity, on your company or industry, either positively or negatively (consistent with the law, which can allow some discussions, like labor organizing). For instance, an employee may want to defend the company against a competitor or customer complaint, but you may prefer to have the company respond. Let your employees know what they should do, like inform the Communications department, if you have one.

• Behavior - If employees do comment on your business area, they may be perceived as representatives of you business. It can be useful to remind them to act appropriately

• Clarity - If employees are allowed to comment, you may want them to be clear and transparent, meaning for example, they state that they work for your company, but are speaking in their individual capacity.

• Content - There are undoubtedly things that you don’t want employees to share, like confidential business plans, private business information, or false statements. Even if that seems obvious, it is better to make it explicit.

• Review - Under what circumstances, if any, will you review posts and who performs the review (such as the Communications department, if you have one)

• Legal concerns - Being online and away from work doesn’t insulate employee behavior. As discussed above, behavior that would be harassment in real life could also be harassment online. Your policy can educate your employees.

There are, of course, many other topics that you could include. Deciding what to include in a policy depends on the circumstances. It is often a good idea to consult with at least some affected employees so that your policy accounts for their assumptions.

Managing Business Presence

Social media offers amazing benefits - among other things, it provides an opportunity to interact directly with customers in real time. It can be important to have a strategy to maximize the advantages of your online participation. Having a strategy also helps in developing a policy. At the same time, writing a policy can help you think through your strategy.

While there are benefits to participating in social media, there are also strategic pitfalls. Say the wrong thing, and the consequences can be far-reaching. Legal considerations can also be important. Sometimes good public relations is simply meeting public expectations by paying attention to rules and regulations.

However, as Mr. Gitchel acknowledges, it can be challenging even for an attorney to be aware of all applicable laws. Bearing “Three C’s” in mind will help you avoid the major risks: compliance, competition, and copyright.

• Compliance - Follow the laws and rules specific to your industry. If you are not familiar with the applicable laws, consult an attorney. And don’t forget sources of rules that are outside the law, like a franchise agreement, trademark license or other agreement.

• Competition - Fair competition laws apply equally online and off. Ensure that you always follow competition laws and that your statements are either provably true or puffery (like “we’re the best”). Decide whether you will ever discuss specific competitors and if so, do so carefully.

• Copyright - If you want to post pictures, videos or music, make sure that you have the right to do so. Virtually everything you find online is protected by copyright, and failing to account for that protection can subject you to a cease and desist letter, embarrassing public relations, and even a lawsuit. You may also need permission from people in the picture.

It can be useful to follow a two step analysis when considering a post. First, is it consistent with your strategy. Second, is it consistent with legal requirements.

Who are you when you’re online? That is a decision you get to make.

This article does not necessarily reflect the opinions of the editors or management of EconoTimes