Understanding Ethical and Legal Issues Related to Social Media

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Understanding Ethical and Legal Issues Related to Social Media

There is probably some truth to social-media consultant Peter Shankman’s comment “For the majority of us, social media is nothing more than a faster way to screw up in front of a larger number of people in a shorter amount of time” (Trillos-Decarie, 2012). As social media have become more important in the workplace, we are starting to get a better idea of both their rewards and their risks. Certainly, social media have created many new and exciting ways for people in the workplace to connect with each other and with other stakeholders outside the organization. However, the widespread use of social media by employees in the workplace and in their private lives also presents challenges.

User-generated content, whether it is posted to Facebook, Twitter, LinkedIn, YouTube, Google Groups, Yelp, Pinterest, or any of the many other online services, presents significant new ethical and legal issues. Just as employers are trying to produce social-media policies that promote the interests of the organization without infringing on employees’ rights of free expression, all of us need to understand the basics of ethical and legal principles related to these new media.

A 2012 report by the law firm Proskauer Rose LLP, “Social Media in the Workplace Around the World 2.0,” surveyed some 250 companies from the United States and many other countries. Here are some of the survey findings (Proskauer Rose LLP, 2012, p. 2):

Over the next few years, organizations will revise their policies about how employees may use social media in the workplace, just as courts will clarify some of the more complicated issues related to social media and the law. For these reasons, what we now see as permissible and ethical is likely to change. Still, it is possible to identify a list of best practices that can help you use social media wisely—and legally—in your career.

Using Social Media Ethically and Legally

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These nine guidelines can help you use social media to your advantage in your career.

  • Keep your private social-media accounts separate from your company-sponsored accounts. After you leave a company, you don’t want to get into a dispute over who “owns” an account. Companies can argue, for example, that your collection of Twitter followers is in fact a customer list and therefore the company’s intellectual property. Regardless of whether you post from the workplace or at home, post only about business on your company-sponsored accounts.
  • Read the terms of service of every service to which you post. Although you retain the copyright on original content that you post, most social-media services state that they can re-post your content wherever and whenever they want, without informing you, getting your permission, or paying you. Many employers would consider this policy unacceptable.
  • Avoid revealing unauthorized news about your own company. A company that wishes to apply for a patent for one of its products or processes has, according to the law, only one year to do so after the product or process is first mentioned or illustrated in a “printed publication.” Because courts have found that a photo on Facebook or a blog or even a tweet is equivalent to a printed publication (Bettinger, 2010), you could inadvertently start the clock ticking. Even worse, some other company could use the information to apply for a patent for the product or process that your company is developing. Or suppose that on your personal blog, you reveal that your company’s profits will dip in the next quarter. This information could prompt investors to sell shares of your company’s stock, thereby hurting everyone who owns shares—including you and most of your co-workers.
  • Avoid self-plagiarism. Self-plagiarizing is the act of publishing something you have already published. If you write an article for your company newsletter and later publish it on a blog, you are violating your company’s copyright, because your newsletter article was a work made for hire and therefore the company’s intellectual property.
  • Avoid defaming anyone. Defamation is the legal term for making false statements of fact about a person that could harm that person. Defamation includes libel (making such statements in writing, as in a blog post) and slander (making them in speech, as in a video posted online). In addition, you should not re-post libelous or slanderous content that someone else has created.
  • Don’t live stream or quote from a speech or meeting without permission. Although you may describe a speech or meeting online, you may not stream video or post quotations without permission.
  • Avoid false endorsements. The Federal Trade Commission has clear rules defining false advertising. The most common type of false advertising involves posting a positive review of a product or company in exchange for some compensation. For instance, some unscrupulous software companies give reviewers a copy of the software to be reviewed (which is perfectly legal) loaded on an expensive computer that the reviewers can keep. Unless the reviewer explicitly notes in the review the compensation from the software company, posting the positive review is considered false advertising. Similarly, you should not endorse your own company’s products without stating your relationship with the company (U.S. Federal Trade Commission, 2009).
  • Avoid impersonating someone else online. If that person is real (whether alive or dead), you could be violating his or her right of publicity (the right to control his or her name, image, or likeness). If that person is a fictional character, such as a character on a TV show or in a movie, you could be infringing on the copyright of whoever created that character.
  • Avoid infringing on trademarks by using protected logos or names. Don’t include copyrighted or trademarked names, slogans, or logos in your posts unless you have received permission to do so. Even if the trademark owner likes your content, you probably will be asked to stop posting it. If the trademark owner dislikes your content, you are likely to face a more aggressive legal response.

Finally, a related suggestion: avoid criticizing your employer online. Although defamation laws forbid making untrue factual statements about your employer, you are in fact permitted to criticize your employer, online or offline. The National Labor Relations Board has ruled that doing so is legal because it is protected discussion about “working conditions.” My advice: if you’re angry, move away from the keyboard. Once you post something, you’ve lost control of it.

However, if you think your employer is acting illegally or unethically, start by investigating the company’s own resources for addressing such problems. Then, if you are still dissatisfied, consider whistle-blowing, which is discussed in The Role of Corporate Culture in Ethical and Legal Conduct.