Liability and Facebook

According to Facebook’s “Facebook for Business” page[1], there are over 900 million people currently holding Facebook accounts. That is a staggering amount. It is no wonder that in 2011 it was estimated by ZNet.com[2] that nearly two-thirds of all small businesses had a Facebook page. Clearly Facebook is an advantageous marketing tool because the page itself is free and the advertising offered is relatively inexpensive when compared to the price to reach a similar market volume.

However, businesses should be aware of the potential liabilities created by having a Facebook page. Recent court decisions by the Advertising Standards Board in Australia demonstrate the liabilities created by allowing public comments to be made on a company’s Facebook page. Although the decisions are Australian-based, for those companies in the United States, these decisions provide guidance on what steps can be taken to prevent or at a minimum, limit, liability.

The Advertising Standards Board issued this opinion:

“A Facebook site of an advertiser is a marketing communication tool over which the advertiser has a reasonable degree of control and could be considered to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose directly or indirectly that product… As a Facebook page can be used to engage with customers, the Board further considered that the Code applies to the content generated by the advertisers as well as material or comments posted by users or friends.[3]”

The advertising of US-based businesses, including franchises, is regulated and businesses should understand and be aware of the regulations and guidelines and make sure that they are complying in all their marketing and advertising –including on Facebook and other social media sites.

In July we posted a blog about what employers should know about social media policies (see http://tinyurl.com/83wt2ym). In order to help avoid liability from customer posts on a business’s Facebook page, the social media policies should include the manner in which the company plans to handle posts that have the potential to create liability, and these policies should be shared with employees and any outside parties that have access to or control your social media sites.

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[1] https://www.facebook.com/business/overview

[2] http://www.zdnet.com/blog/facebook/two-thirds-of-small-business-owners-use-facebook-for-marketing/1529

[3] http://www.lexology.com/library/detail.aspx?g=bcfa3cdc-cd11-404f-a3c5-a8f7dd0c5bba

A Primer on What Employers Should Know About Social Media Policies

In its third report of 2012, on May 30, 2012, the National Labor Relation’s Board (“NLRB”) further narrowed the scope of what would be construed as an acceptable employee social media policy. If you are an employer and want to restrict your employee’s social media use, you will want to read the Report (found here: NLRB May 30Report –click 'Operations Management Memo'). This latest report clarifies how various policies can be found to limit an employee’s Section 7 rights (read the National Labor Relations Act here) and are therefore unlawful.

The basic rule derived from the various NLRB reports is that an employer will be liable for social medial policies and rules that “would reasonably tend to chill employees in the exercise of their Section 7 rights.” However, if your social media policy provides rules “that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not be reasonably construed to cover protected activity, [the rule is] not unlawful.”  

Essentially, three main points were made in the May 30 report:

1.   Do not be over-broad in your policies. Be specific. If you do not want employees sharing personal information of other employees, be sure that you are not limiting the employee’s right to discuss labor conditions, salaries and wages, etc.

2.  Give clear examples. Tell your employees what type of conduct is not allowed (i.e. discriminatory, harassing, obscene, malicious, threatening, disparaging, etc.). If you do not want confidential information to be disclosed to the public, tell your employees specifically what type of confidential information is included. Remember, it cannot include those items that are covered by the Act.

3.   General disclaimer or “savings clause” does not cure the over-broad portions of a social media policy. In other words, if your policy is full of over-broad policies and you fail to give limiting examples and clarifications, your statement that the policy will be administered in compliance with all applicable laws and regulations, will not overcome the problems.

The Report gives several examples of poorly written policies and why they were found unlawful. However, it also gives employers the opportunity to view a policy that was found to be compliant with the act. Wal-Mart’s policies were found to be in compliance and are provided for readers starting at page 22 of the Report.

If you are writing or revising your employee manual’s social media policy, make sure that you reference the NLRB reports. And ask yourself if your policy leaves any question as to whether or not such lawful activities such as discussions on wages, working conditions, labor unions, etc. are somehow restricted.

This blog post is not meant to be an in depth examination of your duties and responsibilities as an employer in formulating a social media policy. Nor is it meant to cover all examples of how to avoid liability. You should discuss your social media policy with a qualified attorney or other qualified resource.