Across the spectrum, individuals and organizations are waking up to the various perils of online social media. Last week, the U.S. Marine Corps banned access to online social networking through the Marine Corps Enterprise Network on the basis that such access presents an unacceptable security risk.[1] Similarly, the National Football League® has recently banned its players from using Twitter®.[2] Tony La Russa, famed baseball manager, recently settled a lawsuit with Twitter® over a (now deleted) fake Twitter® profile page.[3] Even lawyers and judges are coming under scrutiny for their online social networking activities.[4] Perceived anonymity or impersonal communication may lead people to do or say things that they would not say or do in person.

The simple fact is that with the increasing popularity of online social media channels such as Facebook®, Twitter® and LinkedIn®, corporate and private individuals are starting to realize their legal vulnerability. For example, an employer might publicly praise an employee through LinkedIn®, a professional social networking site, by giving the employee a positive “Recommendation.” If the employee’s performance subsequently declined, resulting in a termination of employment, the “Recommendation” might later be brought into court as evidence in a claim of wrongful termination, perhaps providing just enough evidence for the suit to survive a motion for summary judgment.[5] Alternately, Facebook® users might create unauthorized “pages” or register a fictitious Facebook® username associating themselves with the company. While many such uses are innocent, they nevertheless have the potential to infringe company trademarks and copyrights, or associate the company with discriminatory or harassing content.

Article authored by McAfee & Taft attorneys Ryan Lobato and Dara Wanzer.

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