Social Media Can Hurt You In A Lawsuit

Social media postings could soon join email as a common part of the legal discovery process. Here's what SMBs need to know to protect themselves.
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"There are more outlets for people to act as agents of the company, when they really aren't, in the Facebook world," Brigman said. "I'm an employee of Applied Discovery on my Facebook page, and whatever I say comes with a tacit assumption that it's fairly valid if it's about Applied Discovery."

The second scenario is related but thornier: When someone lists their employer on a social site, that creates an indelible link between their personal and professional lives. Whether that person realizes it or not, their online behavior traces back to the company they work for. The general concept predates the online era--social media just magnifies the issue. "It's always been a tricky subject for employers," Brigman said.

So what's a smaller company with limited resources to do? The best approach, Brigman said, is a mix of policy and education. If your SMB doesn't have a social media policy, it needs one. Now. (Check out The BrainYard's must-haves for your policy, as well as why it needs regular checkups.) At least a basic level of online monitoring is also a recommended practice for SMBs, even if that simply means setting up a Google Alerts for your company and its applicable brand names.

"Having [a social media policy] is always the first step; enforcing it is always the second step," Brigman said. Even if enforcement is difficult, Brigman said having a policy is a crucial fallback position for SMBs in legal matters.

A good policy should clearly cover--and prohibit, as needed--personal use of company information in social media settings. While advising employees about their personal social media habits is a touchy subject at best, SMBs can educate their employees about privacy settings, security issues, and the sometimes blurry lines between personal and professional lives. When Facebook rolls out major changes, for example, make sure employees know how those changes impact corporate strategy--and by extension what they might mean in a personal setting.

"Get across the message that we're not trying to control your private life--we're trying to make sure it doesn't impact the company," Brigman said. In other words: What happens in Vegas should be restricted to your personal contacts rather than published for public consumption.

Another consideration: Brigman noted that some SMBs are likely not treating the social media marketing and other programs with the same degree of care that they do with other company assets, perhaps skipping brand or legal review processes. "The nature of social media is relaxed and conversational, so the default is that you see a level of informality that doesn't existing in other aspects of a marketing or PR plan," Brigman said. "I'm not sure today that most Facebook Pages go through the same amount of vetting." Given social media's rapid rise in business environments--and its apparent plans to stick around for a while--Brigman thinks they should.

The extent to which SMBs govern social media usage will depend largely on the company and its broader industry. Brigman said businesses that vie for federal contracts and those that operate under heavy regulation should err on the side of restrictive policymaking. He also noted that consultants, service providers, and others that trade on their reputation need to be particularly mindful of their social media presence.

For any business, the legal implications of social media, particularly in cases involving individuals within a company, are broad: "Any time you're talking about cases that turn on some degree of character and fitness, Facebook is going to be a logical place to go," Brigman said.

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