Legal implications of social media

library booksThere have been a handful of U.S. stories lately related to an individual’s right to say things about his or her job on social media platforms.

Last week I was interviewed by a Salt Lake City TV station about a woman who called her boss a psycho on Facebook and lost her job. A lawsuit filed by the National Labor Relations Board argued the worker’s negative comments were protected speech under federal labor laws. The suit was settled out of court and the company agreed to change its social media policies. I blogged about this story on my Posterous blog and you can see the KSL TV report here.

Here’s yet another instance of an employee saying derogatory things in social media — on a personal blog, during non-work hours — and her employer dismissing her from work:

This week we heard about a 30 year-old English teacher in suburban Philadelphia who was put on paid leave after the school district found out about her blog that characterized some of her students as “disengaged, lazy whiners” (read the article on USA Today).

I heard some attorneys on one of the cable news programs discussing this case. Both commented that the school district had no written social media policy, the teacher didn’t disclose names or specific identifiable information but instead made general comments about today’s high schoolers, and there would be no legal reason the school district could actually terminate the teacher’s job.

We’re seeing a trend here folks!

I’ve said for a while that the law hasn’t caught up yet with this social media phenomena. Fact is, the technology and its acceptance is moving so fast, it would be difficult to keep up.

At least in America, what we’re witnessing is the debate between an organization’s right to protect itself and its interests and an employee’s right to free speech.

This debate is just getting started. I don’t believe it’ll be resolved until we have case law — most likely Supreme Court decisions — to reference on the many different ramifications of rampant social media acceptance and usage.

I can’t help but think of something we were all taught as children: that if you don’t have anything nice to say, don’t say anything at all. Perhaps that’s a good guide for what you should publish on social media. And the reason I don’t blog about . . . oops, almost forgot one of my rules.

Then again, it’s not like any company would prohibit its employees from speaking ill of the company or its employees during a family board game, or a neighborhood block party. We’d think a rule like that to be ludicrous. The challenge for organizations today is that not all comments are isolated, many are broadcast for the world to read and see on the Internet and therefore create an impression of that organization, for good or bad.

And let’s face it, no one likes to be portrayed negatively.

Part of me feels the women in the two examples referenced above have every right to say what they want about their work as long as they don’t give away proprietary information or help a competitor.

Part of me feels sorry for companies and organizations being forced to adapt to changing cultural norms and the new reality of a worldwide social conversation in which they have only one voice and very little, if not zero, control.

Perhaps there are dos and don’ts that should be applied to all sorts of social media. Then again, isn’t that contrary to the whole idea of a participatory conversation?

Social media means that, whether you choose to participate or not, people will talk about you — your people, products, brands and services. And what they say will be online, discoverable and open to the world.

The opportunity exists to first listen to the conversation, then participate and help guide the discussion towards a purposeful result. This is an ongoing, never ending prospect. This is the new reality.

In both of the examples above, organizations either had an extremely strict social media policy (which they were afraid to legitimize in the courts), or no written policy. So, the key takeaway is for organizations to create a written social media engagement policy, hopefully one that has the input and support of its attorneys as well as its constituents.

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