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Polsinelli - Science and Technology

July 2013


Social Media: A Double-Edged Sword


Commercial Litigation


Russell S. Jones Jr.

Practice Area Chair


Stacy A. Carpenter

Practice Area Vice Chair



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Social media is one of the fastest growing tools businesses use to employ marketing tactics in a timely and cost effective manner. It has the power to propel a company ahead of competitors, and into a thriving market position. On the flip-side, social media also has the power to unwillingly propel a company into a negative market position.

In February, a post to Reddit by a national casual dining restaurant chain's former employee caused the company to endure 20,000 Facebook comments on its Facebook page and calls to boycott the chain. In April, a tweet caused the Dow Jones industrial average to lose about $136 billion in market value. Whether it is a tweet by a disgruntled employee, a damaging review by a competitor, or a disparaging Facebook status by a former employee, a business has to be prepared to confront negative exposure in social media.

States are adopting more stringent privacy laws, making it difficult for businesses to access an employee's or prospective employee's account on a social networking site. California, Illinois, Maryland, Michigan, New Jersey, and Utah have enacted legislation restricting employer access to social media accounts of employees. Effective just this year, Illinois amended its Right to Privacy in the Workplace Act to make it unlawful for an employer to request or require an employee or prospective employee to provide information to gain access, or to demand access in any manner, to an employee's account or profile on a social networking website. California law prohibits a private employer from requiring or requesting an employee or applicant to disclose a username or password, from accessing the employee's personal social media, or from divulging personal social media (except in investigations related to employee misconduct). In addition, this legislation prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or retaliating against an employee or applicant for not complying with a request or demand by a violating employer. With more states adopting laws like these, businesses will need both a prevention plan and a reaction plan to control damaging social media posts by applicants and employees. While some states have specific laws addressing this problem, the Internet extends far beyond state lines. Businesses should consider seeking legal counsel to determine whether and which state laws apply.

In determining what type of plan or policy to implement with regard to social media usage by employees, companies will need to consider the implications of Section 7 of the National Labor Relations Act ("NLRA"), which limits an employer's ability to prevent employees from engaging in "concerted activity." Over the past two years, the National Labor Relations Board has taken an active interest in social media policies, finding that the language of many policies violates employees' Section 7 rights to discuss the terms and conditions of their employment.

When faced with a social media quandary:

  • Document and save the post at issue – either print it or take a screen shot.
  • If the post is on a social media page that the company owns, it may be simple to remove the post.
  • When the identity of the user who posted content is known:
    • Take action and contact the user directly
    • Send a demand letter
    • Discuss with counsel whether to contact the poster's employer (if, for example, the post was done while at work or through a work account).
  • When the identity of the user who posted is unknown:
    • Contact the web host and request that the post be removed
    • In the case of a defamatory statement by an anonymous poster, a victim may file a defamation lawsuit against a John Doe defendant and request the court to authorize discovery. The victim would then need to serve a subpoena on the online host site in order to trace the ISP address to the anonymous poster.
  • Defamation claims in response to postings on an opinion website are rarely successful in the area of opinion host websites. Sometimes, although not usually, responding with a positive post in a polite fashion might be appropriate. However, check with counsel to avoid a counterclaim for defamation. Avoid retaliatory posts.
  • ASK:
    • Does your company have an effective social media policy and has that policy been reviewed recently to insure compliance with the NLRB's rapidly changing views on whether limitations on social media postings violate Section 7 of the NLRA?
    • What is your company's reaction plan when your company is negatively exposed on a social networking site?
    • Does the plan comply with today's laws?

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