
Our firm recently completed a publication that identifies some of those other key concerns, in
addition to reviewing employment-related social media guidelines. Topics covered include:
·
Protection of Confidential Business
Information: We have previously
blogged about the difficulty of keeping confidential business information –
including trade secrets – truly confidential in this electronic age. This involves protection of
information from outside competitors, as well as internal management of
employee conduct and protection against future competition from former
employees. There is a particular tension
between a company’s desire to have a social media presence, including a dynamic
and information-loaded website, and the need to protect of confidential
information. Even if information
qualifies as a legally protectable trade secret (or legally protectable
confidential information), the protection can be lost if the company allows the
information to be disclosed to the public, whether via social media or
otherwise. Communicating clear
guidelines to employees, as well as constant, careful management of electronic
content, is crucial.
·
Violation of Others’ Copyrights and Other
Proprietary Interests: This is the
flip side of an employer’s need to protect its own confidential business information. Companies need to take
steps to ensure that their employees are not violating the property rights of
others, including copyrights, through social media content sharing or the posting
of information on the employer’s website.
Even republication of information obtained from public sources can
trigger liability if the information was improperly published in the first
instance. Companies need to carefully control the information that is disseminated
through social media and take prompt remedial action if others’ property rights
are encroached upon. This is yet another area requiring clear guidelines for
employees regarding acceptable and unacceptable conduct.
·
Defamation of Competitors: There is sometimes a very fine line between a
company’s statements extolling the superiority of its services or products and its
statements running down the competition. If false, negative statements about a
competitor can constitute business defamation. Companies may be held legally responsible for their employees’ defamatory
statements, particularly if the employer has reason to know about them and fails
to act to control or remedy those communications. Such derogatory comments may also harm a
company’s own business reputation, even if they don’t create legal
responsibility. Whether made on social
media or otherwise, such statements create risk and employers should provide
clear guidance to their employees about acceptable parameters for discussion of
competitors.
·
Privacy Considerations: Social media use triggers a variety of
privacy concerns that flow from both employer/employee relationships and
company/customer relationships. We have
previously blogged about privacy issues in email searches, employees’ privacy rights in their social media accounts, and NLRB rulings related to employee privacy. State wiretapping and surveillance laws and federal
laws such as the Electronic Communications Privacy Act, the Stored
Communications Act, and the Computer Fraud and Abuse Act also apply to how a
company uses and protects information gathered from customers and users of its
website.
A Legal Guide To Social Media in the Workplace provides an overview of these considerations,
all of which employers should have in mind as they draft their social media and
electronic information policies.
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