With over 800 million (and counting) active users worldwide on Facebook alone, the continued frenetic growth in social media interaction may mean more marketing and networking opportunities for businesses, but it could also spell legal and financial trouble related to privacy and data security issues or resulting from incautious and cavalier use.

 Careless social media use by company representatives too often subjects a company to bad press or other public relations issues and can also lead to more serious concerns like legal trouble and loss of business opportunities.  Careless social media use takes many forms, for example:

• An employee commenting about private company information on Facebook without properly applying privacy settings, leading to the inadvertent disclosure of company gossip, confidential job-site details, or other sensitive information to unintended recipients including corporate competitors
• A company representative disseminating a polarizing or offensive comment through Twitter, which is attributed to the company
• An employee posting an embarrassingly unprofessional profile picture on LinkedIn, which is circulated to colleagues and clients who are invited to connect with the organization on the site.

Social media refers to the variety of Internet-based platforms in which users create networks with friends and colleagues for co-creation and collaboration of ideas.  Social media use extends across an extremely broad spectrum of global culture, including breaking news, entertainment and pop culture, academics, sports and leisure, professional networking, and business marketing.

Well-known social media sites include Facebook, Twitter, LinkedIn, YouTube, Tumblr, Pinterest, Foursquare, Bing and Bebo, but the title can also refer generally to blogs and online article comments. Last year, the Nielsen online measurement company reported that social networks and blogs reached nearly 80 percent of active U.S. Internet users and represented the majority of time spent online. Social media therefore affects small and large businesses alike — any construction or contracting firm will undoubtedly have a subset of employees and representatives that participate in some aspect of online social media.      

Business Policies

While most businesses now have procedures in place that manage the potential risks associated with electronically stored information (ESI), many still omit policies that address social media usage. But, like ESI, social media content is discoverable under Rule 26(b) of the Federal Rules of Civil Procedure and can create significant risk and vulnerability in litigation.

Across the country, a growing number of courts are allowing discovery of Facebook and Twitter account content. A New York trial court decision, Romano v. Steelcase, Inc. (2010), rejected the plaintiff’s privacy arguments and held that the social media profile, postings, photographs and other content were discoverable because, the court reasoned, when users sign up for and create social media accounts there is no reasonable expectation of privacy.  Along the same line of reasoning, in The State of New York v. Twitter Inc. (2012), it was decided that it is Twitter Inc., and not the Twitter user, that owns the tweets and personal information; and therefore, the site must turn over such information when subpoenaed in litigation. The judge commented that, “by design, Twitter has an open method of communication,” noting that Twitter’s privacy policy notifies its users that what “you say on Twitter may be viewed all around the world instantly.” The court deduced that “the user is granting license for Twitter to distribute that information to anyone, anyway, and for any reason it chooses.”

This recent line of cases makes clear that your company’s and your employees’ online social media activity is discoverable in the context of litigation and provides fair warning to everyone, including executives, managers, supervisors and employees, that they must be mindful of the content posted to social media and interaction sites. Savvy attorneys, e-discovery practitioners and forensic data collectors already recognize these kinds of sites as “gold mines” of data and review them for key information and leverage.

If your company, including company representatives and/or employees, utilizes social media or is considering establishing and launching an online profile for marketing and business development, then the use of such platforms must be carefully regulated.