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While social media can be a powerful tool to foster customer and
constituency engagement the absence of clear guidelines relating to their use
may have unintended legal consequences. A study by Gartner[1]
shows that legal
implications notwithstanding many organizations lack effective social media
policies. The report cautions that “by
the end of 2013, half of all companies will have been asked to produce material
from social media websites for e-discovery, so enterprises need an overall
governance strategy for all applications and information, and this strategy
should include content created on social media.”
Social media is deemed to be a
discoverable source of information just as any other form of electronically
stored information (ESI). Accordingly,
organizations should take steps to identify, capture, control and preserve
social media content in the same manner as they manage other sources of content
particularly if such information is considered to be an information resource of
business value. However, the principal
challenge with social media is that its use is largely ephemeral in nature and
the boundaries between personal and corporate uses may be blurred.
So what are the possible legal
ramifications associated with inappropriate use of social media? They may be wide ranging consequences that
encompass copyright infringement, defamation, invasion of privacy, violation of
labor laws and in some cases criminal liability.
Canadian courts have affirmed
discoverability of social media provided that it is material and relevant
evidence. For example, the Ontario Superior Court decision in Leduc v. Roman the defendant in a
negligence claim sought a production order to examine plaintiff’s Facebook page
to rebut his claim of injury that “might have some relevance to demonstrating
Plaintiff’s physical and social activities, enjoyment of life and psychological
well-being.” Not only is social media
content discoverable it is now also an approved process to serve notice of
claim. A recent decision of the Alberta
Queen’s Bench in Knott Estate v.
Sutherland held sending notice of action to defendant’s Facebook profile
was valid.
Copyright infringement is a
common cause of action relating to the use of social media. User generated content by cutting and pasting
is a common practice which in some cases may constitute an infringement of the
copyrights owner’s exclusive rights to control the use and reproduction of the
copyrighted material. And there are
clever tools[2] that track the use of licensor’s visual
content through the use of advanced crawling and recognition technology.
Of particular import is the use
of social media in a manner that may be defamatory. A recent case in point is the decision of the
British Columbia Labor Relations Board in Lougheed
Imports Ltd where it was held that the dismissal of two employees based on
derogatory comments on their Facebook page was valid on the ground that their
Facebook friends consisted only of co-workers. As such the use of Facebook was
deemed to be workplace related and not personal use.
Inappropriate use of social media
by employers may lead to claims of discrimination. Research shows that over 20% of Canadian
companies surveyed check social media sites when screening prospective job
applicants.
There are other more sinister exploitation of social media with
tragic consequences as evidenced in the very recent case of a Rutgers
University student who was convicted of videotaping a roommate kissing another
man and then tweeting about it to other students which led to the roommate’s
suicide.
In a broader context protecting the privacy of personal and
personally identifiable information is one of the most challenging aspects
associated with the proliferation of social media technology as collection of
such information represents a bonanza for on line advertisers. An example is the recent decision by Google to
combine information gathered across all of its service offerings to provide a
more comprehensive profile of its subscribers.
By virtue of the new privacy policy subscribers do not have the option
to opt out. Privacy advocates argue that
“there is no way a user can comprehend the implication of Google collecting
across platforms for information about your health, political opinions and
financial concerns.”
The Gartner report suggests that "Social media content is
like all other content that is created by companies and individuals and is
subject to the same rules, laws and customs….Policymakers need to keep policies
simple when it comes to what should and should not be done online. A good rule
of thumb is that whatever the company code of conduct is for in-person
encounters, and whatever the rules are for general good behavior and common
sense apply in the online world as well."
[1] http://www.gartner.com/it/page.jsp?id=1550715
