Shortly after the conclusion of the 2012 presidential election, Clayton State University Police Capt. Rex Duke posted a message on his Facebook page reading, “It's time for the second revolution.” The message was accompanied by an image of the Confederate flag.
Although Duke created the post while off-duty and removed it after only an hour, a local television station received a tip and subsequently ran a story about the post, as well as Duke’s position on the police force. Duke was demoted from captain to detective and received a pay cut of $15,000. The officer resigned and filed a lawsuit against his former boss and the school board, claiming that the action taken against him had violated his First Amendment rights.
At the time of the posting, however, the Clayton State University police department had no social media policy that would have legally prevented Duke’s actions. Ultimately, a federal district court in Georgia ruled that the department had an interest in maintaining its reputation, which outweighed the officer’s own First Amendment interest.
Indeed, social media’s complex role in the workplace remains a relatively new issue. Many organizations have yet to implement formal policies on the matter—which puts them at potential legal risk. CMO.com spoke to commercial litigator John Riccione, of Chicago-based law firm Aronberg Goldgehn, to discuss the importance of corporate social media policies, what they should encompass, and how far-reaching they can go.
CMO.com: How would you define “social media policy"?
Riccione: A social media policy would be some kind of corporate code of conduct for individuals to use or practice on a company social media account, as well as on their own personal social media account.
CMO.com: What are some best practices for social media policies?
Riccione: Well, you should definitely have some kind of policy, and it should include a few elements. It should discuss appropriate use; it should deal with confidentiality of content, accountability, and personal use; and, perhaps, related but not identical to confidentiality, it should deal with copyright issues. And finally, I would always have individuals’ consent in writing of acknowledgment of the policy. I think those five things are very broad and high-level categories, but those are the primary elements that should be included in a policy.
In terms of appropriate use, any good policy should define who will be allowed to communicate with the public, and it should also outline what is acceptable and what is not. It should also articulate the fact that employees have a duty to protect their employers’ reputation. Finally, it should provide some real guidance about what can or cannot be stated about third parties, such as competitors, customers, and vendors. This may also extend to each employee’s own personal social media account.
Secondly, when we’re talking about confidentiality, what we’re primarily talking about is the content—whatever content is posted on social media platforms. That content should comply with the company’s confidentiality and disclosure policies. For example, it’s the practice and duty of a law firm to keep client confidences confidential. You obviously don’t want people from your staff or office publishing confidential attorney-client privilege-type communications. Whatever policies you have with regard to confidentiality should be mirrored in your social media policy, as well.
When I talk about accountability and personal use, you have to make it clear in your policy that employees will be held accountable for what they write. I encourage employers to consider including some kind of declaration that the company regards comments made on social media as public, as well as maybe some kind of statement against bullying or harassment over social media. So, if you have a bad day at work, you don’t want to write some awful things about your co-workers.
With copyright issues, you should include some kind of statement about copyright, plagiarism, libel, and defamation of character-type issues—just some kind of warning—and have your employees sign it in acknowledgment that they’ve received it.
CMO.com: What are the greatest risks of not having a social media policy?
Riccione: You run the risk of an employee doing things on social media that harm the company and not having that be a violation of company policy. One of the benefits of having a media policy is that all employees are on level ground and understand that there is a policy that dictates what you should and should not do on social media so there’s no surprise when there’s discipline. First of all, it’s good to avoid risk, so if you dictate what is appropriate and not appropriate to be published on social media to all of your employees, everyone knows what to do and what not to do. And if they violate that policy, there should be no surprise that there’s going to be some discipline for some violations and policies.
CMO.com: Who should be in charge of implementing social media policies?
Riccione: It depends on the company, but it should certainly be upper management or business owners. In a very complicated organization, when creating a very thorough policy that doesn’t harm the company, there should be a meeting of the minds of all management and departments. There are some companies that encourage prolific use of social media, and then there are some that discourage all communication on social media. I wouldn’t want a staffer publishing internal goings-on of my law firm, for example.
I encourage a more centralized control of the information that goes public; because of all of our attorney-client privilege concerns and confidentiality concerns, not everybody wants their case, whether it’s won or lost, published to everyone. There has to be some control, and I think that while that control should ultimately come from upper management, it’s important to have a well-rounded collaboration among all department managers to come up with a pretty thorough and appropriate policy.
Since at least part of the purpose for a social media policy is to present the company to the public, marketing considerations are paramount and, as such, marketing officers must play a role in the development of such a policy and how to display or publish the company’s social media message.
CMO.com: Where do you think companies should draw the line in terms of how they monitor their employees’ nonprofessional social media presence?
Riccione: There’s a delicate balance between private and professional life, and organizations need to be cognizant of that and not delve too far across the line into personal space. It used to be very clear that an employer would respect their employees’ conduct activity on his or her own personal time, but those lines are becoming blurred now. If I work for a restaurant, for example, and I say some pretty awful things about the restaurant on my own time on Yelp or a similar site, that’s damaging. Although that’s on my own personal time, I think employers can forbid or at least regulate that kind of negative speech. I think the employer is within its rights to regulate personal but harmful speech against the employer. I think you can be terminated for that type of speech.
They’re passing these laws, it seems, every year, and several more states jump on board each time. But the laws are primarily geared against employers and educational institutions delving into peoples’ personal social media accounts. That’s pretty much a no-brainer; you can’t do that anymore in most states. I think there are many gray areas between personal and public privacy, and that’s going to take some time to get vetted among the state legislatures. But how much further it goes, only time will tell.