This morning, my daughter, who just discovered the “Back to the Future” movie franchise, was asking about what things were like way back in 1985.
I waxed poetic about the joys of the pre-Internet, pre-cell phone era, no doubt confirming my daughter’s suspicion that her father was a technology curmudgeon. I was late to an in-home Internet connection, late to cell phones, late to crackberry-inspired all-email-all-the-time. And now—no surprise—I am late to the social media revolution.
In a basic way, Facebook, LinkedIn, Twitter, etc. present no new legal risks or exposures, but such social media do have the potential to magnify current risks for two fundamental reasons:
- Assume that whatever you put on the Internet is permanent. It never goes away. Today there are new “service” firms that have a single mission: to create a permanent archival copy of every page ever created on the Internet. I do not know whether these Internet archive companies are succeeding, but I presume, if they aren’t yet, they will be soon.
- The Internet virility phenomenon may be the all-time best example of a double-edged sword. The power of the Internet in general, and of social networking platforms specifically, is in their potential to distribute information at the speed of light. The viral nature of the dissemination poses a tremendous threat because a casual remark published through social media can almost instantaneously show up on cell phones and in email in-boxes around the world. Nearly every week, a marquee professional athlete proves this with another ill-advised tweet.
For insurance agencies and brokerages, social media may enable you to better communicate with current and prospective clients by providing real-time updates on issues of concern as well as a potentially potent marketing platform. It also enables clients to more efficiently communicate with you and other clients, which may help you listen better (one of the hallmarks of the new model) and build more effective relationships.
In harnessing the power of social media, be conscious of the normal legal exposures inherent in any corporate communications and public relations endeavor. These include, but are by no means limited to:
- Antitrust. There is no faster way to facilitate an inappropriate conspiracy than through the magic of the Internet.
- Intellectual property rights. The Web is also the best platform for misappropriating the work of others (and the best way for them to monitor such infringements on their rights).
- Libel/slander/tortious interference. Anything you want to say about a competitor in this medium will be heard by all.
- False advertising/deceptive practices. See above.
- Breach of contract. Social media providers have rights, too. They memorialize them in their usage policies, to which your firm is bound when it accepts those terms.
- Employment issues/privacy. Courts have found that employees have no privacy rights to the Web pages they access and to which they contribute.
A 2009 Deloitte study found that 55% of all employees in the United States visit social networking sites from their workplaces at least once a week. But be aware that you have potential exposure not just for your employees’ use of social media, but for your firm’s. It could find itself defending claims based on others’ posting of materials on or through your firm’s social media facilities.
Regardless of whether your firm intends to deploy social media, you need a social media policy. As a general matter, a good policy will outline your firm’s social media philosophy, including whether the firm intends to include social media as part of its business practices. It should clarify to whom the policy applies, note the permanence and virility of the social media environment and acknowledge that the policy may change. It should also include procedures and the potential penalties for violating the policy.
Core policy principles generally encompass the following:
- Personal vs. Professional. In any posting, an individual should identify whether he or she is stating his or her own opinion or the opinion of their employer. It is advisable to include a model disclaimer that employees can use when speaking on their own behalf.
- Deferring to experts. No one should misrepresent himself or herself as an expert when he or she is not.
- Don’t tell secrets. Everyone should respect proprietary information, content and confidentiality.
- Parameters. What topics are appropriate to discuss and what topics are not?
- Give credit. If another’s materials are being used, be sure you have permission and give attribution.
- Mistakes. A process for dealing with mistakes will help avoid liability issues. This could be as simple as contacting counsel or drafting a memo summarizing the mistake.
Whatever you think about social media, it appears it’s here to stay, along with everything on it. Do with it what you will.