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posted: 11/21/2011 5:00 AM

Social media use can spark legal issues

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Lisa Callaway is an attorney. "I'm on social media," she says. "You have to embrace social media opportunities.

"But you have to be careful about what people say."

Bob Koback is an attorney, too. "Be aware of what you say" on social media, he says. "Don't respond off your Blackberry when you get a message. Take a breath. Read the message, digest it and respond after lunch. Think first."

Got the message? Social media can be as important a marketing-business development tool as many small businesses hope, but don't plunge ahead blindly: From defamation to copyright infringement, there are legal issues that social media misuse can trigger.

Both Koback and Callaway are business-side attorneys. She is vice president and general counsel at the Management Association, Downers Grove, an HR compliance-focused association for employers. He is an attorney at Russel G. Winick & Associates, P.C., a Naperville business law firm. (Disclosure: The Winick firm is a recent client of my marketing consulting firm.)

The first step, Koback says, is to understand the boundaries. Facebook's terms of use, for example, "is a 17-page contract that obligates you to behave in a certain manner," Koback says. LinkedIn can link to Twitter, he continues, so that information on one is shared on the other -- but that means business information appropriate for LinkedIn can appear on Twitter, where it may not be so appropriate.

What your business says -- and who says it -- on social media sites matters. For instance, product comparisons "must be objective and truthful, and you must be able to back them up," Koback says. "The FTC's truth-in-advertising rules apply."

So do copyright and other intellectual property rules. Although Koback says that "the law is clear that the employer has no right to control what employees put on their private (social media) accounts," rules about who speaks online for the company are necessary.

"Have a policy memo," Koback says.

It seems basic that postings "should not disclose trade secrets and confidential information -- the company's client list or secret formula," Callaway says. Yet what's basic to the business owner may not be basic to an employee.

"Train your people," Callaway suggests. Management Association members can draw upon the organization's suggested social media use policy that notes, for example, "only employees designated and authorized by the employer" can post, edit or delete content on the company's social media, and that the business' "anti-harassment and EEO policies apply to the use of social media in the workplace."

There's more, but you get the message. "Employers must be careful about what they put out there," Callaway says.

Just in case, Koback suggests reviewing your company's liability insurance. Social media coverage, he says, sometimes is excluded.

You might want to call your agent.

• Jim Kendall welcomes comments at

2011 121 Marketing Resources Inc.

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