Dealing with internal threats from social media: the legal standpoint

By Chris Lee

In February 2013, entertainment retail outlet HMV – already suffering the consequences of its collapse into administration in January – suffered further embarrassing publicity at the hands of one of its off-message social media managers. NMK covered the public relations implications of the HMV Twitter incident, but what legal options do brands have to prevent such incidents and take action against those that break policies?

NMK spoke to John Halton, a partner at law firm Cripps Harries Hall, about what brands can do in such circumstances.

Every channel present a potential threat

According to Halton, the HMV incident highlights the risks faced by businesses who put their brand reputation into the hands of individuals who can make material widely and quickly available through Twitter, Facebook, corporate blogs and other forms of social media, often with little control from the business itself.

“The damage from misuse of corporate social media accounts can go beyond damage to reputation, important though that is. It can lead to legal liability for the businesses, who are deemed responsible for what their employees post on those accounts,” he told NMK.

Halton says that areas of liability could include:

Discrimination: anti-discrimination laws can hold employers responsible for discrimination by their employees. Where comments are made about another employee online that amount to harassment, liability can arise for the employer

Confidentiality: HMV would clearly have preferred not to have news of the redundancy meeting leak in so spectacular a fashion. In other cases, businesses could find that employees have posted material that breaches legal confidentiality obligations, or that puts trade secrets into the public domain

Data protection: where social media communications relate to living individuals, misuse could put businesses in breach of data protection laws

Minimise the risk from social media misuse

So what steps can employers take to minimise the risk of social media misuse?

“They should have policies on social media use for all employees and ensure that those who do have access to official accounts are appropriately trained and can have their access revoked quickly if necessary,” Halton advised. “Some employers may decide to require pre-approval of any social media messages, but other businesses have concluded that this gets in the way of the effective, real-time engagement with customers that social media, used well, can provide.”

For Halton, the real message is that employers need to understand what their social media systems are and are able to exercise control when needed.

“It was revealing that one of the final tweets from HMV’s outgoing Twitter contributor said; ‘Just overheard our Marketing Director (he’s staying, folks) ask ‘How do I shut down Twitter?’’ – suggesting that HMV’s systems and controls over its social media presence were a long way from adequate,” Halton concluded. “Other organisations show rather more nous. Within minutes of Pope Benedict XVI’s abdication taking effect on 28 February, the Vatican had archived all his tweets and wiped clean the various @Pontifex accounts ready for his successor. It’s an interesting sign of the times when the Vatican shows greater awareness than a company like HMV of the need to act quickly in managing their social presence in real time.”

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