G L O B A L C A P I T A L B L O G

SOCIAL MEDIA POLICY GUIDELINES

Summary: In light of the comments of clients and many Web entries on the topic of social media policies, we thought it would be useful to summarize the guidelines we use when drafting such policies. The topic itself has ballooned to cover a multitude of subjects but we will confine ourselves to employee use. So, in summary, the two principles are: Be sensible and be careful. Use it as a “teachable moment” (as much as people dislike that phrase). Finally, we think the legal risks are overstated: The sky is not falling, Chicken Little. Existing policies should be able to handle much of the concern with a few “tweaks.” Below we have fleshed out these basic principles.

The Context.

By some measurements, social networking messages now exceed the volume of email traffic. Whatever the metric, social media sites—that is, social networks like Facebook, LinkedIn, Xing and so forth—are here to stay. Of course, lawyers (and others) now hop up and down and insist that corporations must institute social media policies.

In fairness, risks to companies exist when their employees (or independent contractors) use social media. And they will use it, at work and elsewhere. So, what should a company do to create and manage such a policy?

A social media policy can cover a broad range of topics—indeed, perhaps it should be called social media policies. For example, publicly-traded companies have to take into account such matters as regulations on “forward-looking statements.” However, this blog only considers employee use—which makes sense at one level because it is, fairly, part of the employee/employer relationship. (Not all employees will be subject to securities regulations.)

So What?

Corporate Guidance. Decide what you are trying to accomplish and put that in the context of the corporation you want to be—meaning the corporate culture and the employer/employee relationship you want to have. This may be one of those rare “teachable moments” and one with substantial benefits to the company, not merely in mitigating risk but in strengthening the relationship between the company and its employees. So, treat it that way. Provide guidance as to corporate plans, new products and services and expectations as to comments on the company itself. Disabuse employees of some myths—for example, the notion that the right of free speech provides an absolute defense against any HR actions regarding an employee. In this case, it is to there are risks Be sensible, which means:

You cannot control it, you can only mitigate its damaging consequences. Social network use is now so pervasive that it is just a fact of life.

Be positive. Drafting a policy in legalese with lots of “Thou shalt not . . .” will do more damage than good. Provide guidance and training rather than only the usual threats of punishment for infractions.

GLOBAL CAPITAL LAW GROUP PC

GLOBALCAPITAL/Page 2

Be careful. Limitations on employee behavior can get a bit tricky, given the profusion of employment laws and regulations at federal, state and local levels. In terms of third-party risks, try to avoid being held responsible for employee comments (which of course begs the question: How?).

Legal Risks. Naturally, social media sites provide outlets for employee behavior that could be actionable—i.e., a posting could be grounds for a sexual harassment suit or it reflects poorly on the corporation. We take the position that this has always been a risk in any corporation. What has changed is the scale and speed of such damage.

That being the case, your HR policies and training probably already cover behavior guidelines—what is appropriate and what is not. One need merely “tweak” those policies and training programs to explain how they apply in the social media context. Of course, if you do not already have such policies, well, get them in place right now.

But no, the sky is not falling; social media policy is just a question of figuring out what you are trying to accomplish and how to integrate it into your existing policies—and remembering that it is an opportunity to work positively with your employees. Indeed, that is a good thing.

James C. Roberts III (jcrext@globalcaplaw.com) is the Managing Partner of Global Capital Law Group and CEO of the strategic consulting firm, Global Capital Strategic Group. He heads the international, mergers & acquisitions and transactional practices and the industry practices concentrating on digital, media, mobile and cleantech technologies. He is currently involved in opening the Milan office for Global Capital. Mr. Roberts speaks English and French. He received his JD from the University of Chicago Law School, his MA from Stanford University and his BS from the University of California—Berkeley.

GLOBAL CAPITAL (www.globalcaplaw.com) counsels domestic and international clients on legal issues inherent in the deployment of intellectual & financial capital—a merger or acquisition, foreign market expansion, a strategic alliance, a digital content license, a mobile deal, foreign and domestic labor and employment policies, starting a new entity or raising capital. Clients range from global Fortune 100 corporations to start-ups. Industries represented include digital media, Internet, software, medical and biotechnology, nanotechnology, consulting firms, environmental technology, advertising, museums and other cultural institutions and manufacturing.

www.g loba l cap l aw .com

GLOBAL CAPITAL LAW GROUP PC