The popularity of social-networking sites such as Facebook, Twitter, MySpace,
and LinkedIn calls for a fresh look at
consumer litigation and privacy issues related to social network
postings. Is your organization ready?
Sites such as Facebook, Twitter and YouTube
are valuable marketing tools. Almost
every major consumer product now invites customers to follow its
product on Facebook or Twitter. But this usage is
a double-edged sword. When consumer complaints go viral, companies
may find it hard to regain control of the message about their
A recent example illustrates the problem: In May 2010, spurred
by a Facebook group of more than 10,000
members, a proposed national class action lawsuit was filed against
Procter & Gamble (P&G) alleging that diapers made with the
DryMax" technology caused severe diaper rash, blisters and/or
infections. In the past, government regulators might have received
product complaints from consumers in ones or twos via snail mail or
e-mail. Now, social networking sites amplify consumers' views
on a given product by concentrating hundreds or even thousands of
opinions in one place. Companies must be prepared to respond
effectively when complaints go viral.
Another major challenge associated with social networking
involves individual privacy. What's public? What's private?
And what's discoverable in the social networking era? A
recent decision, Crispin v. Christian Audigier, Inc.,
2010 U.S. Dist. LEXIS 52832 (C.D. Cal. May 26, 2010) explores new
dimensions in this area. In Crispin, a case involving breach of
contract and copyright infringement claims, Audigier served
subpoenas to obtain Facebook and MySpace communications between
Crispin and various third parties. Crispin moved to quash the
subpoenas on the grounds, among others, that the 1986 Stored
Communications Act (SCA) prohibited Facebook and MySpace, as
ISPs, from disclosing the requested communications. A magistrate
judge found that Facebook and MySpace were not subject to the SCA
and ordered them to produce the required communications.
The district court reversed the magistrate's decision. After
analyzing the specific functionalities of Facebook and MySpace, the
district court held that the Facebook wall postings and MySpace
messaging services were subject to the SCA and therefore private.
The court noted that no prior court had addressed whether social
networking sites fall within the SCA's privacy provisions.
Crispin is the first, but likely not the last, court case to
grapple with the issue.
The near-universal access to social-networking media requires
that companies and their legal counsel be proactive in evaluating
current policies and developing strategies that allow their company
to take advantage of the benefits of social media, and effectively
navigate the unique challenges that come with it.
[MK adds some practical advice:
Convene a working group including legal counsel, marketing,
personnel/human resources, information security and IT
representatives to create or review policy, procedures and
emergency response relating to social networking issues.
Define clear rules for employees detailing exactly what
reference they may and may not make to employer-related
information; stipulate whether they may mention that they are
employed by the organization, whether they may use logos and
trademarks owned by their employer, and whether they are
responsible for monitoring the content of postings by non-employees
on their social-networking sites that may affect their
Sketch out several plausible scenarios of increasing severity
and work through the detailed responses that are appropriate in
each case to minimize harm to the organization. Include
considerations of personal communications, persuasion, legal
pressures, and even law enforcement involvement depending on the
details of the scenario. Challenge the team to think of
alternatives to each scenario and work out different ways of
Provide awareness-raising and training for employees about
appropriate, professional uses of social networking sites; include
scenarios for role-playing and discussions.]
For more about employment policies and social networking,
Boyle, E. A. & C. Rdzak (2009). "Social Networking 101:
What Employers Should Know When Dealing With Employees' Social
_Employment rights and responsibilities_ Summer 2009 E-Zine. Retrieved 5 Nov 2010.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Corporate tweeters or bloggers – employees who post promotional and often entertaining commentary on behalf of their employers’ businesses – add much of their own personal brand – their voice, their opinions, their snarky remarks – to the information they are disseminating on the company’s behalf.
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