Social Media – An Overview of Legal Issues Businesses Face

Social Media- Twitter, Facebook, Blogs- can all be a great resource for businesses looking to increase their profiles and their profits.  Unfortunately, many businesses overlook, or are simply not aware of, the legal issues that can arise from the use of Social Media, either by the business or by their employees. This article will present an overview of some of the more pressing legal issues facing businesses today.

Intellectual Property.  Businesses need to be aware of their own business identity and also of third party trademarks.  Registering a trademark will protect improper use by a third party and allow you, the business owner, to control when and how the mark and materials can be used.  Consider registering your trademark or service mark as a user name on social media websites.  For example, it would be quite easy for Coca-Cola® to sue for the improper use of its logo on an unrelated Facebook page because the company took steps to register the logo as a trademark with the U.S. Patent and Trademark Office.  While not impossible, it is significantly more difficult to assert a right over a logo or mark when no real ownership of the logo or mark can be claimed.

Awareness of third-party marks is as equally important. A person or entity can be sued for infringement or illegal use of another’s trademark or service mark. The test for infringement is a “likelihood of confusion.”   Using the example from above, would someone looking at your Twitter account or Facebook page believe that he or she was dealing with the Coca-Cola® Company and not your business?  While there are a few exceptions, it is a better policy to (1) not use someone’s trademark and (2) not imply that there is an affiliation, connection or sponsorship with a company if there is no such relationship.

Employment.  Business must be careful when implementing Social Media for their “hiring and firing” policies.  An employee you hire from a competitor changes his status on LinkedIn.  LinkedIn, in turn, sends out an update to your new employee’s contacts, which include former clients.  You are aware that your new employee signed a confidentiality agreement barring him from contacting clients of his former employer.  Can the former employer sue your new employee for breach of contract?  Can the former employer sue you for interference with a business relationship?  The answer to both those questions is yes.  Although you may eventually prevail, you are doing so at the cost of expensive litigation. Another example takes you to Facebook where you are researching a potential employee.  You notice that individual’s religion or political views and decide not to hire that individual.  Your refusal to hire for these reasons, if proven, could be enough to find that you violated anti-discrimination laws.

Defamation.  Defamation is a spoken (libel) or written (slander) statement that is knowingly false and misleading and which is damaging to the reputation of the person or entity. Singer Courtney Love has been sued for a “tweet” she posted on Twitter about a fashion designer.  An apartment company sued a blogger for blogging that the company’s apartments have mold.  Social Media sites should be monitored for potential defamatory statements.  Any such statements should be removed and employees should be discouraged from making such statements and if made, disciplined.  A disclaimer, although not foolproof, will put users on notice and may discourage potentially defamatory statements.

Privacy. The recent suicide of a Rutgers University freshman after his roommate secretly taped and posted videos of him being intimate with another person unfortunately illustrates the particular attention which must be paid to privacy and Social Media.  The individuals responsible for posting the video have been charged with invasion of privacy and prosecutors are reviewing the facts to determine if bias/hate crime charges are appropriate. Persons who post information about themselves should also take precautions.  Revealing where you live or your day to day routine can be dangerous. 

Generally, a business owner engaged in Social Media is there to promote the business and has no interest in invading someone’s privacy.  In this digital age where information can be posted quickly and become widespread, even an “innocent” comment posted by you or your employees without truly thinking about what was written can be viewed as an invasion of privacy if a reasonable person would not want that information disclosed.

It is clear that Social Media sites are part of everyday life but as commonplace as they are the business owner must still have control.  How does a business avoid these and other legal issues? A well written Social Media Policy.  A Social Media Policy will set forth rules on how an employee may use Social Media sites.  Once written, the Policy must be implemented, employees must be trained to understand the Policy and most importantly, the Policy must be enforced.  A Policy that is not enforced is meaningless and if a Social Media issue is litigated, there is a good chance that it will be viewed as if the business did not have a policy at all.

For help in creating and implementing a Social Media Policy, contact the Jennifer Cerce at jlc@mbm-law.net or 412.242.4400.

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