Social Media: A Double-Edged Sword

by Polsinelli

Social media is one of the fastest growing tools businesses use to employ marketing tactics in a timely and cost effective manner. It has the power to propel a company ahead of competitors, and into a thriving market position. On the flip-side, social media also has the power to unwillingly propel a company into a negative market position.

In February, a post to Reddit by a national casual dining restaurant chain's former employee caused the company to endure 20,000 Facebook comments on its Facebook page and calls to boycott the chain. In April, a tweet caused the Dow Jones industrial average to lose about $136 billion in market value. Whether it is a tweet by a disgruntled employee, a damaging review by a competitor, or a disparaging Facebook status by a former employee, a business has to be prepared to confront negative exposure in social media.

States are adopting more stringent privacy laws, making it difficult for businesses to access an employee's or prospective employee's account on a social networking site. California, Illinois, Maryland, Michigan, New Jersey, and Utah have enacted legislation restricting employer access to social media accounts of employees. Effective just this year, Illinois amended its Right to Privacy in the Workplace Act to make it unlawful for an employer to request or require an employee or prospective employee to provide information to gain access, or to demand access in any manner, to an employee's account or profile on a social networking website. California law prohibits a private employer from requiring or requesting an employee or applicant to disclose a username or password, from accessing the employee's personal social media, or from divulging personal social media (except in investigations related to employee misconduct). In addition, this legislation prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or retaliating against an employee or applicant for not complying with a request or demand by a violating employer. With more states adopting laws like these, businesses will need both a prevention plan and a reaction plan to control damaging social media posts by applicants and employees. While some states have specific laws addressing this problem, the Internet extends far beyond state lines. Businesses should consider seeking legal counsel to determine whether and which state laws apply.

In determining what type of plan or policy to implement with regard to social media usage by employees, companies will need to consider the implications of Section 7 of the National Labor Relations Act ("NLRA"), which limits an employer's ability to prevent employees from engaging in "concerted activity." Over the past two years, the National Labor Relations Board has taken an active interest in social media policies, finding that the language of many policies violates employees' Section 7 rights to discuss the terms and conditions of their employment.

When faced with a social media quandary:

  • Document and save the post at issue – either print it or take a screen shot.
  • If the post is on a social media page that the company owns, it may be simple to remove the post.
  • When the identity of the user who posted content is known:
    • Take action and contact the user directly
    • Send a demand letter
    • Discuss with counsel whether to contact the poster's employer (if, for example, the post was done while at work or through a work account).
  • When the identity of the user who posted is unknown:
    • Contact the web host and request that the post be removed
    • In the case of a defamatory statement by an anonymous poster, a victim may file a defamation lawsuit against a John Doe defendant and request the court to authorize discovery. The victim would then need to serve a subpoena on the online host site in order to trace the ISP address to the anonymous poster.
  • Defamation claims in response to postings on an opinion website are rarely successful in the area of opinion host websites. Sometimes, although not usually, responding with a positive post in a polite fashion might be appropriate. However, check with counsel to avoid a counterclaim for defamation. Avoid retaliatory posts.
  • ASK:
    • Does your company have an effective social media policy and has that policy been reviewed recently to insure compliance with the NLRB's rapidly changing views on whether limitations on social media postings violate Section 7 of the NLRA?
    • What is your company's reaction plan when your company is negatively exposed on a social networking site?
    • Does the plan comply with today's laws?


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Polsinelli | Attorney Advertising

Written by:


Polsinelli on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.