So you have a social media policy. Have you thought about these issues?
Most employers today know about the dangers – and benefits – of social media, and have policies in place to deal with employee use of social media like Facebook and Twitter. But have you thought about these related issues?
Data Retention
Have you checked to see if archived posts to social media sites from your ISP have been included in your document/data retention policy? Social media posts are increasingly the source of litigation, or are requested to be produced in litigation. You should have a systematic plan for dealing with archiving and retention of this data.
Security Risks
Social media plug-ins, like game applications on Facebook, are notorious security risks and can introduce malware to your system. If you allow employees to access social media at work, you may want to consider prohibiting use of third-party applications.
Terms of Service
User agreements for all social media are subject to the terms and conditions of the social media provider. Few people ever read these provisions. If your business has a social media site, you are most likely bound by these terms, even though they are adhesion contracts. Most of these contracts have choice of venue clauses requiring disputes to be litigated or arbitrated in the provider’s home venue (e.g., Facebook requires disputes to be litigated in California). Some also include strict indemnity provisions. While it may be unlikely you would ever end up in a California court in a dispute with Facebook, it is good to be aware of the potential pitfalls in the terms and conditions.
Insurance
If you as an employer are accustomed to insuring against most risks, be aware that some insurance companies are starting to provide coverage for social media. This coverage is in its infancy and it’s not clear how exactly how cost effective the coverage may be, but social media insurance may be something you want to consider.
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Electronic media is an incredible asset for businesses, but as always new types of information systems pose new and evolving risks. Take the time to think through the risks of social media beyond the obvious employee disparagement issues. A little time on the front end can save a lot of heartache on the back end.
Amy D. Cubbage, Of Counsel in our Louisville office, practices litigation in the areas of complex tort and commercial litigation, including class actions, toxic torts and mass torts, and employment litigation. She also litigates and counsels clients in the area of general constitutional and governmental law, with an emphasis on First Amendment, campaign finance, elections, and other constitutional issues, including the commerce clause, public contracts, governmental ethics, and eminent domain. Ms. Cubbage can be reached at (502) 327-5400 or acubbage@mmlk.com.
