Words matter. Words can come back and bite you. Think before you speak. These are all self-evident truths that no one is likely to dispute. Yet, we continue to see examples of people who should know better doing just the opposite. This is especially true in the context of electronic communications—first, in work emails, and now, on social media websites. If it were a simple matter of personal embarrassment alone, then there would be no need for this article. That is not the case, however.
Social media—Tweets, Facebook posts, LinkedIn updates—can have real legal and economic consequences for businesses. A post may seem as innocent as an employee expressing a personal opinion. However, if the person describes herself as working for a particular company, and then speaks on a highly controversial subject, her post could damage the "good will" of the company. Or, the poster may be recommending a product to all of her Facebook friends without sharing that she happens to work for the product manufacturer, in violation of fair advertising practices.
1. A Social Media Policy Is a Good Way to Show Compliance with the Federal Trade Commission's Revised Endorsement Guidelines
In the last year, businesses have increasingly recognized the need for a social media policy. First, the Federal Trade Commission (FTC) revised its "Guides Concerning the Use of Endorsements and Testimonials in Advertising" ("Endorsement Guidelines") to make it clear that, in some contexts, truth-in-advertising principles may apply to social media posts: (1) endorsements should not be misleading; and (2) non-obvious connections between the endorser and the marketer of the product should be disclosed if they would reasonably affect how much weight a consumer places on the endorsement.
The connection may include the endorser being paid or receiving some quid pro quo from the product being endorsed, and this needs to be disclosed. For example, reviews on social media sites such as Yelp should disclose if the reviewer also happens to be an employee of the business, or if the reviewer is swapping positive reviews with another business owner, or is receiving anything of value in return for a positive review. Similarly, the Endorsement Guidelines would require someone who tweets about a product to disclose if the poster is being paid to endorse that product.
More significantly for businesses, the FTC recognized in its Endorsement Guidelines that a business cannot realistically oversee all of the social media posts by its employees and ensure that they do not violate the Endorsement Guidelines. The FTC has stated that the employer should not be held liable in this situation if: (1) the employer has a social media policy concerning the "social media participation" of its employees; and (2) the established company policy adequately covered the "rogue" employee's conduct.
Thus, the company can show that, despite its best efforts, the employee violated the Endorsement Guidelines, and the company should not be held liable for the employee's unauthorized acts. In order to do so, however, the employer also needs to establish procedures to monitor compliance with its social media policy. The FTC declined to say how the monitoring should be done, but it put the onus on companies to determine for themselves what would best satisfy their legal responsibilities in the context of their business.
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"A zero social media policy" employer would be at the top of my application targets, were I in the job market at the moment. After twenty years of being a belled cat, I no longer carry a cellular phone unless on long road trips for emergency communications only, much less a PDA or other distraction from getting useful work done.