An ounce of prevention is worth a pound of cure” is a very fitting description for what businesses are learning when they do not have their social media presence reviewed by a social media law attorney. Here are a few examples of what businesses have had to pay as a result of not complying with the law in this area (which is admittedly a work in process with offline rules being a useful guide):
1. A non-profit company, Hispanics Union of Buffalo, Inc. (“HUB”) was ordered to rehire 5 employees that it fired for complaining about a co-worker on Facebook, and pay them back pay. The costs of this social media misstep can be quite high, especially when you factor in attorneys’ fees. In the case of HUB, HUB had not hired replacement workers, but for many businesses the firing of employees, who had engaged in protected concerted activity (complained with other co-workers about employment conditions, salary, benefits, or a manager), would also mean salary or overtime to get the work of the fired employees done.
Cost-saving alternative: Adopt a social media policy that reflects the National Labor Relations Board’s recommendations on how not to have an overbroad policy. Implement the policy so you are not chilling or interfering with social media conversations that are considered protected concerted activity by your employees. Avoid using vague language that standing alone can be misinterpreted as chilling protected speech about compensation, benefits and work conditions such as trying to prohibit employees from discussing “confidential information” on social networking sites (can be construed according to the NLRB as including online conversations between employees about their compensation). It is not enough to include a disclaimer that the policy is not intended to restrict Section 7 activity. “The ‘savings clause’ in the Employer’s social media policy was insufficient to cure the ambiguities in the rule and remove the chill upon Section 7.” The savings clause provided that the policy would not be interpreted or applied so as to interfere with employee rights to self-organize…” The NLRB found that the majority of policies out there are overbroad, which is not surprising since many businesses have used a cookie cutter approach of taking a social media policy from an online site without appreciating what they deleted as pertaining to another company should have been replaced with language specially tailored to their company and the needs of their company in terms of protecting trade secrets, etc.
2. Facebook and Google have recently entered into consent decrees with the Federal Trade Commission (“FTC”) in order to avoid expensive, drawn out litigation concerning business practices that the FTC alleged were outside the scope of the social media sites’ privacy policies; and violated their own privacy promises to consumers. These consent decrees include: (1) having to pay for periodic audits conducted by independent third parties for the next 20 years to assess their privacy practices; and (2) having to obtain affirmative consent from their users before making changes that override users’ privacy preferences.
3. Just as parties in litigation have to produce emails and other electronically stored information (“ESI”) that may be relevant or lead to relevant information in the legal dispute, courts are imposing sanctions on parties who do not preserve this ESI, and are including in the universe of ESI that must be preserved the social media activity of the parties as well. In a sad twist to an already tragic story, a widower and his attorney were sanctioned three quarters of a million dollars in a wrongful death action. The widower had received an award of $10 million dollars against the truck driver whose truck had overturned and killed his wife. The judge also cut in half the jury’s award of $10 million dollars. It is reported that the widower on the advice of his attorney deleted pictures from his Facebook page, and later concealed the fact that he also deactivated his Facebook account based on more bad (and unethical) advice from his attorney. This destruction of evidence and pattern of deceptive and obstructionist conduct resulted in the discovery sanctions award. While the facts here were especially egregious, courts are increasingly sanctioning parties who fail to preserve discoverable evidence through a document retention policy.
If your business does not already have one, adopt a document retention policy. Alternatively, update the policy you do have to ensure that social media activity is being captured as well, and maintained for an appropriate period of time depending on the subject matter of the activity. There are vendors who can help your business archive its social media activity so that even posts or comments that are deleted at some point in time will be captured, and can be produced should your business need it.
These are only a few examples of how it makes sense to integrate a social media attorney into your social media marketing plan so you can make sure your business is taking the path of cost-saving alternatives.