Monday, 19 March 2012

Legal Considerations Impacting Use of Social Media: A Double Edge Sword

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."



  • 3 May 2012 at 11:33

    This why I recommend friends and business owners to be extra careful when preparing to engage any social media practices.


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