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The Legal Risks and Rewards of Using Social Media
November 2, 2015

My grandfather once told me that everything good in life could also be bad. That there are two sides to every coin. And how it all depends on your perspective.

Okay, I just made that up. My grandfather mostly talked about how in his day, he had to walk to school, barefoot, in the snow, up hill, both ways, and then spend the evening picking turnips on the family farm (which I suspect was untrue based on the fact that he grew up in Manhattan). But I digress.

Regardless of whether I am making this story up, the expression rings true: there are two sides to every coin. And social media is no exception.

On one side of the coin, social media provides your business with the opportunity to easily and effectively engage customers, promote your products and services, and develop an online interactive brand that can be accessed 24 hours a day, 7 days a week. When using social media effectively, your business can experience greater revenue, increased customer engagement, and invaluable goodwill. But these benefits are not without legal risks.

One the other side of the coin, your business could be exposed to lawsuits if social media is not managed correctly. There are many state and federal laws, regulations, and social media site rules that govern the social media activities of your business and its employees. These laws apply equally to businesses of all shapes, sizes, and industries.

So to help your business safely and successfully experience the rewards of social media, here are a few common social media legal risks:

Social Media Legal Risk #1: You Are Responsible for Your Employees’ Social Media Activities

There’s a fancy sounding legal doctrine called respondeat superior that holds employers responsible for their employees’ actions when performed within the course and scope of their employment. This means that your business can be held responsible for certain legal and regulatory liability arising out of your employee’s social media use.

Specifically, you could be held responsible for an employee’s defamatory, discriminatory, or harassing social media message, comment, or tweet. You could also be sued if your employee leaks sensitive customer information or improperly uses your intellectual property and trade secrets. To make matters worse, these risks exist regardless of whether the employee commits the offense at the office using company-owned computer resources or at home using their personal social media accounts. So you’ve got to be really careful about who you hire.

Social Media Legal Risk #2: You Could Be Sued if You Don’t Search Your Employees on Social Media Before Hiring Them

You could be sued under a legal theory of negligent hiring if you don’t search applicants on social media before hiring them. In a nutshell, the law of negligent hiring holds a business responsible if an employee harms someone during their employment if the employer should have learned during the hiring process that the employee was likely to engage in that harmful behavior. Your business could therefore be sued if you don’t spend a few minutes checking out your potential employees online behavior.

At first glance, this risk seems easily avoidable. Your business already searches applicants on social media. So you’re okay, right?

Well, as my grandfather might have once said, “If it sounds too good to be true, it probably is.”

Social Media Legal Risk #3: You Could Be Sued if You Do Search Your Employees on Social Media Before Hiring Them

Yes, you read that right. Businesses who search applicants on social media before hiring them are also exposed to legal risks. Here’s why:

Federal anti-discrimination laws that make it illegal for your business to base any hiring decision on someone’s age, race, color, national origin, sex, religion, disability, sexual preference, medical history, or veteran status. The moment you view an applicant’s Facebook profile, you become exposed to their marital status, certain biographical information, cultural or religious affiliated groups, and status updates.

Failing to hire someone after being exposed to this information can get your company sued for employment discrimination. If you lose your case, you must pay the applicant’s damages, attorneys fees, court costs, and may have an injunction entered against your business. Even if you win, you’ll have to fork over a ton of money to your lawyer to defend the case.

So how can you protect your business from social media legal risks?

The first step is to conduct a social media risk assessment. A social media risk assessment will help your business identify social media legal risks with employees, hiring, human resources, marketing, technology, and everywhere else. An attorney experienced in social media legal issues will interview key personnel, review your existing policies and compliance procedures, prepare a risk assessment report, and provide you with compliance solutions that can prevent lawsuits and regulatory problems.

To avoid social media legal risks caused by your employees, your business must implement social media policies and compliance procedures. Social media policies and compliance procedures will help protect your company’s reputation, business relationships, trade secrets, and intellectual property.

By providing social media legal training, you will provide your employees with a clear understanding of what they can and cannot do on social media, and thereby empower them to use social media in a manner that will provide rich rewards for your business while avoiding legal risks associated with employees that post harassing, confidential, or other inappropriate material.

So now that you know the legal risks and rewards of social media, what next?

Call heads or tails. If you pick heads, you’ll take the proactive step of having a social media attorney conduct your company’s risk assessment. You’ll learn about the specific legal risks facing your business. And you’ll implement compliance solutions to enable your business to fully embrace the rewards of social media.

If you chose tails, you’ll forgo the assessment and continue to operate your business while being exposed to social media legal risks. Maybe you’ll be fine. Or maybe you’ll run into some legal trouble and spend a bunch of money on lawyers and court costs. And then maybe one day you’ll be telling your grandchildren how there are in fact two sides to every coin.

So go ahead. Flip a coin.

This post was first published on Maximize Social Business on August 25, 2015.