Legal questions to ask when creating social media policies


Social media policies are another hot and constantly developing area of the law today.  For this month’s post, I am following up on Jessica’s post about making sure your social media policy is up to date.  Her post gave some great advice and examples of how to approach putting together a social media policy for your website.  As she mentioned, the National Labor Relations Board has released a number of decisions recently about the use of social media in the workplace, and guidance about how employers should tread in making decisions about policies and decisions in regard to their employees’ use of social media in the U.S.   

This post is by no means meant to be exhaustive in its coverage of the potential applicable laws and guidance out there to help in drafting a social media policy, but is intended to help get you start with a good foundation of guidance that will help you keep your policy up to date.  There is not currently a lot of case law on social media specifically, so it is important to monitor new developments that may impact your social media policy and what it needs to address.  The particular country or state in which you live or operate your business can determine which laws and regulations apply to you, and can help guide the process of drafting or updating your social media policy.  Jurisdiction is playing an increasingly important role as various states and countries try to formulate laws to address the use of social media.  For example, the Missouri state legislature passed a law earlier this year that banned the interaction of teachers and students on Facebook.  It was recently repealed after quite a bit of uproar and controversy, and demonstrates how quickly the applicable law regarding your use of social media can change.  

In evaluating your needs in terms of a social media policy, I would start with considering the answers to the following questions:

  1. Where are you located/operating?
  2. What type of business are you in?
  3. What type of information will be shared or stored on your site?
  4. Who is your audience?
  5. Who will be monitoring the social media sites?  
  6. What training will need to be done for those employees or volunteers monitoring the sites?
  7. Who is responsible for monitoring changes to the law and updating the policy?

In addition to the NLRB guidance, another important resource to follow in regard to social media is the Federal Trade Commission (FTC).  The FTC has been increasingly creating rules in regard to companies’ use of social media, as well as enforcing them when these rules are violated.  In the U.S., the FTC’s focus has increasingly been on the safety of children online, as well as the disclosure of advertising or endorsement relationships by social media users.  There are companies trying to help individuals and businesses comply with the disclosure requirements, such as cmp.ly, which provides a range of disclosure tools that work across the spectrum of social media platforms, as well as regulatory frameworks.  The FTC also enforces the COPPA regulations that are intended to keep kids safe online, and if your site is going to market to children, you will need to ensure that your social media policy complies with these regulations, and that you stay up to date in this regard.  Please see my earlier post on COPPA to learn more.  

As I mentioned, an important consideration when drafting your social media and other policies is what type of business you are in, and how the applicable regulations interface with the business’ use of social media.  For example, if your company is in a highly regulated industry like healthcare, there may be medical privacy laws and advertising regulations that come into play.  Recently, Johnson and Johnson and other healthcare companies made headlines when it was revealed that Facebook had allowed the company to block users’ ability to post on the company’s wall.  The company stated that they had asked for this ability as a means of trying to avoid potential violations of pharmaceutical advertising regulations in the form of user posts.  However, Facebook then announced a change of policy that would mean drug companies would have open walls on which users could post as they wished.  While pages for specific prescription drugs would still feature the ability for the companies to block problematic posts, more general disease-focused sites would not allow such blocking.  This change caused several companies such as Astra-Zeneca and Johnson and Johnson to close their pages.   

Evaluating the potential risk of violating regulations or other laws that may be present in your use of social media is an important consideration in the process of updating your policy, particularly if you are in a highly regulated industry.  If a regulation has changed in regard to how you or your company use social media, you will need to not only evaluate the risk, but also think of how you can make changes to your policies and procedures to help comply.  It may be a matter of training your employees on how to interact via social media on behalf of the company and remain in compliance with applicable regulations, such as HIPAA in the U.S.  Holding periodic refresher courses to help keep your employees up to date is also a good idea.  

There are a lot of topics that come into play with topics like privacy and social media policies.  I hope to cover many more of them in future posts.  I hope this post has been helpful and will generate some great discussion for you, both here on the Social Media Club site, and in your daily lives.  Remember, one of the best ways to try and comply is to arm yourself with good information.  As always, this post is intended to inform and entertain, and is not meant to be legal advice or the substitute for the advice of counsel licensed in your particular jurisdiction.