Top 10 Things to Consider About Social Media to Protect IP and Avoid Other Problems
By Darin Klemchuk
With the explosion of social media, counsel should give careful consideration to unique problems presented by social media, how it affects the workplace, and how to address social media usage by employees and third parties. As with the rise of the Internet and blogs, existing employee and intellectual property issues are played out in this new venue creating unique problems. However, unlike other venues, social media has the capability to dramatically increase problems by providing a much larger, well-connected audience. The following are some specific, brief considerations that counsel should analyze.
1. It's gone in a flash (or click) - Even inadvertent statements or posts can innocently give away a company's trade secrets. Care must be taken to educate employees about proper use of social media and how to safeguard confidential information. Examples of this include inadvertent disclosure of product launches and other sensitive information.
2. Employee posts in social media may be protected speech - The National Labor Relations Board has ruled that certain employee gripes, while made publicly in social media at the company's expense, are protected and therefore, are not properly the subject of employee termination.
3. Employee posts may subject the company to liability - False statements made by employees or paid third parties about a company's products and services in social media and review sites have lead to claims for deceptive trade practices and false advertising. These risks should be communicated to employees.
4. Employee posts may also create federal administrative action - The Federal Trade Commission promulgated new regulations in December 2009 that require disclosure of any connections between an endorser and a company's products and services. Employees who puff or exaggerate a company's products or services, even if completely truthful, without disclosing their employment relationship run the risk of subjecting the company to administrative action by the FTC.
5. Social media provides a much bigger, real-time audience for yesterday's problems - All the issues facing companies and employee relations, from employee discrimination and harassment to embarrassing pictures and comments at the company party, may be played out in a very public arena at the speed of light. Social media policies should be implemented to address these issues. Being on the losing end of an embarrassing video that "went viral" can devastate a company's brand.
6. Be careful using social media as a recruiting tool - The highly personal nature of social media provides potential employers ample opportunity to learn extensive personal information about employment candidates that ordinarily would not be disclosed in a resume. Companies should exercise care in using this information to avoid claims for discriminatory hiring.
7. Registering usernames is a cost-effective, protective measure - One of the best ways to prevent trademark infringement is for a company to register its name and key brands as usernames for social media sites to prevent username squatters and other infringers from controlling the usernames. Proactive registration is much less expensive than attempting to recover the username later.
8. Social media policies are becoming a best practice - Companies should incorporate social media policies into their employee handbook or develop policies as separate guidelines. The concerns outlined in this article are just a few of the issues that can be covered by a well drafted social media policy. Additionally, a social media policy should address who owns social media accounts, usernames, posts, and other content. Finding out later that an employee or independent contractor owns a Twitter handle and associated posts can be a painful lesson for a company.
9. The best defense is a good offense - Proactively monitoring brand and trademark usage in the social media space is often the best strategy to protect trademark rights. Often, a company can get a third party to stop using its trademarks or brand names with a simple request or through using the intellectual property policies of social media companies. This is usually a better and less expensive route than waiting and filing litigation later.
10. Social media adds additional litigation considerations - Because social media aggregates millions of users, the public relations aspect of this should be considered before commencing litigation. The trademark infringement case between North Face and South Butt, for instance, was played out heavily in social media. Typical aggressive litigation tactics may back fire and actually lead traffic to a sympathetic defendant's social media pages. Careful consideration should be given to these consequences before suit is filed.
Social media has not only opened up new avenues for communications and brand marketing, but has also added whole new ways to infringe on those efforts. Making sure that brands and companies are protected in cyberspace isn't just important; it's an integral part of how companies and their employees must communicate today.