In the age of mobile devices and social media, it is crucial for businesses to have clear policies and guidelines about the control and use of social media by their employees and others. Key factors to consider in these policies include confidentiality, content ownership and brand management. To help our clients take advantage of the many potential benefits of social media, Fasken Martineau has put together some pointers to help crystalize the issues. These pointers, or guidelines, will serve as a good starting point when crafting social media policies, so that our clients can take advantage of the benefits while minimizing the potential pitfalls of social media.

“OMG! Social media is, like, um, ‘literally’ everywhere.”

This euphemistic (and hopefully humorous) subheading is, among other things, intended as a light-hearted reference to the ubiquity of the numerous services and accounts through which users can post and exchange content (e.g., comments, documents, photographs, etc.) with others. Well known examples include the FACEBOOK™, TWITTER™ and LINKEDIN™ services, but there are a significant number of other examples as well, and more almost every day.

  • HMV’s Twitter™ feed was misappropriated by an employee who live-tweeted employee terminations from the company’s official Twitter™ account. The employee had access to the account as part of her employment and reminded her ex-employer that “…you need to go to ‘settings’ and revoke my account access as an admin”.
  • The assistant managing editor of the New York Times left the paper and took many of his 75,000 Twitter™ followers with him.
  • The PhoneDog™ news site alleged that a former journalist misappropriated Twitter™ followers he had acquired while employed with PhoneDog and while operating the PhoneDog™ site.
  • A Quebec-based juice company successfully protected its brand in court only to later be inundated with messages through social media criticizing their actions.1
  • An artist used a “Smokey The Bear” image to protest hydraulic gas fracturing, commonly known as “fracking”. A U.S. government agency sent the artist a cease and desist letter which went ‘viral’ on social media, and turned into a discussion on free speech and copyright fair use.

All of the negative impacts of these scenarios may not have been completely avoided, but likely could have been significantly lessened, had those involved taken some simple initial steps. To properly address situations like those faced by HMV, the New York Times and PhoneDog, it is essential to have clear policies regarding employees’ control and use of social media, particularly those with control of company assets. For the latter two examples, it is also necessary to have an appreciation of when and how disputes can go ‘viral’ and the impact those scenarios can have on your business. Some issues to address in any social media policy should include:

  1. Allocate Responsibility. Designate someone to take control of your social media policy and have that person be responsible for reinforcing it amongst employees. Questions they should address range from day-to-day operations to how social media might best dovetail with the strategic operation of the business.
  2. Address Confidentiality and Privacy. Clearly set out what is considered confidential and cannot be shared vs. non-confidential and can be shared. Provide guidelines to assist employees determine the difference. If any doubt, employees should speak to the person designated in No. 1 and not disclose in the meantime. This aspect of the policy should address both company accounts and employees’ personal accounts.
  3. Ownership and Control. Any social media policy should clearly address the ownership and control of business social media accounts. It should be clear to employees that any social media accounts in the name of the company are assets of the company and will be transferred to the company upon request. The policy should clearly distinguish between employees’ personal social media accounts and those of the company. While the ownership of employees’ personal social media accounts should be unambiguously those of the employees, the company will still want to have a say about how employees use or affect the company’s IP, brand and goodwill.
  4. Monitor the Chatter. Determine: (a) who, how and when to monitor conversations about the company’s brand on social channels; and (b) who, how and when to respond to customers who communicate with you through social media. If there are any conversations or communications to be concerned about, designate a person who has the experience and authority to respond effectively. In advance, prepare a process for handling communications/conversations that could become a crisis (i.e., before they do).
  5. Style and Tone Guidelines. Clearly set out whether employees are able to participate in social media as representatives of the company. If they are permitted to do so, provide clear and effective guidance on how to maintain a consistent tone and style. Clearly set out the consequences of not following these guidelines. Among other things, the style and tone guidelines should also address the use of third party IP (i.e., trade-marks, copyright, etc.).