Legal Risks of Social Media

By: Whitney Redding

Associations are reaping the benefits of active engagement with social media, but legal risks come with the territory. With your members and staff happily (or unhappily) blogging, tweeting, and posting status updates, is your association protected from liability? (Titled "The Risks of Going Social" in the print edition.)

Like many associations, the American Political Science Association is continually enhancing online social networking opportunities to serve the needs of its 15,000 members. Even so, in the day-to-day pressure to keep up with online trends, APSA's director of web and publishing is forever second-guessing herself:

Is the association moving ahead fast enough?

For that matter, is the association moving ahead too fast?

Finding the right balance between taking appropriate business risks and minimizing legal ones is a dilemma shared by all associations, and it can be particularly tricky in the rapidly changing realm of social media. "What keeps me up at night is that we're not positioned to move quickly enough to adapt to new technologies, that our database is not as integrative across everything we do in the association to support our networking goals," says APSA Web Director Polly Karpowicz, CAE. At the same time, she adds: "Do we have the right policies in place?"

That last question is growing more and more relevant as associations mature from being social media dabblers to becoming deep users of LinkedIn, Facebook, blogs, private "white label" platforms, and the like. While associations like APSA are becoming savvier about some of the legal and business risks involved in social networking, the vast majority do not yet have comprehensive social media policies, let alone a dedicated social media strategy, budget, or staff.

According to legal experts, that's a status quo that can land an association unwittingly in hot water. Social media liability may come in a forehead-slapping form, such as when an employee posts copyright-protected materials without permission, but it is just as likely to be vicarious or initially overlooked.

"As an association, there's a certain group of people for whom you historically, under common law and other laws, would be liable," including employees, directors, and officers, says Sherri Way, a senior partner at Krendl Krendl Sachnoff & Way, P.C. "When you couple that with the fact that you have less control over where people are posting things—and you may not even know about the posting—it's like A plus B equals a very scary C. It's a dangerous thing to some degree, and it posits a fair amount of unknown risk for which you could have vicarious liability."

Adopting effective social media policies should help minimize liability, but what constitutes "effective"? If an association's usage policy is too lax, the organization may inadvertently invite greater exposure to legal risks at the hands of an employee or member. If a policy is too restrictive, it may not hold up to legal scrutiny.

While few social-media-related lawsuits have emerged to date, some experts say it is only a matter of time. Of particular concern is the overlap of social media and employment law, as evidenced by the more than 100 social-media-related complaints, including those alleging "Facebook firings," that have been submitted to the National Labor Relations Board (NLRB). "We're just starting to see [litigation], and the beginnings of it are in the employment context," says Way.

Which means that now is an opportune time for associations to take a second look at their policies, evaluate their defensibility, and adopt a proactive stance to address potential liabilities.

'Friending' Social Media

Social media has fast become an invaluable tool for associations. It can be inexpensive and quick to launch, promotes discussion among participants with common interests, helps identify new prospects and categories of members, and provides users with more immediate access to association services. In short, it helps associations remain relevant to their members and true to their mission.

But no organization is immune to legal surprises. A significant misstep involving social media could pull an association into a range of legal danger zones, including employment law, intellectual property rights, advertising, defamation, libel, antitrust, and privacy protection.

If social media is akin to a publishing house in which every author has direct access to a giant audience, then an association with, say, 30 employees and 10,000 members could have up to 10,030 authors self-publishing their views every day. Social media is also like a company water cooler where the customer may be listening in, a communal bulletin board where postings can get covered over but never really go away, a job fair where employers can view an applicant's private photographs, and a public square where an organization's brand can become more widely noticed—or publicly pilloried.

Small associations with a large social media presence may be particularly vulnerable because they often don't have the staff to monitor and get ahead of how the organization is represented in social media. But large associations with deeper pockets, more sophisticated strategies, and dedicated social media staff also are at risk.

"Because they have more people, they do have different risks that sometimes smaller associations don't have," says Way.

Meanwhile, associations that have purposely kept a low profile in social media can still be affected by it, since these technologies break down traditional boundaries for exchanging information. Chances are good that their various stakeholders are referring to the organization in popular social media channels like Facebook and LinkedIn.

Strategy, Then Policy

Most associations have approached social media almost like an experiment, keeping an eye on what other associations are doing rather than studying how the association's own members tend to use it, says Terrance Barkan, CAE, chief strategist and CEO of the consulting firm Socialstrat. And managing social media is often added to the workload of the IT, marketing, or communications department, without the dedication of additional resources to support its success.

Social media policies have developed in a similarly piecemeal fashion, as associations extend existing HR codes of conduct or IT use policies to cover internet usage, or cut and paste policies from other organizations. Experts say this approach to policymaking is valid but can have a downside.

From a business perspective, associations miss the opportunity to tie their social media policies to specific organizational goals. "For me, the whole purpose of social media is to achieve some sort of a goal, a business objective," says Barkan. "Figure out what you're trying to achieve and which channels and metrics will get you there." Clearly, an association's policies regarding Facebook would change if it were determined that the return on investment for having 1,000 "friends" is marginal at best.

From a legal perspective, an association with appropriate and effective policies tied to a business rationale will be in a stronger position to defend itself if a legal action arises. "To have a well-thought-out and regularly updated social media strategy can encourage positive behaviors by employees, members, and the population at large," says Way. "Your employees are your biggest cheerleaders, hopefully, and if you're guiding them in a positive way, you'll have less exposure to worry about."

Barkan says organizations that have not thought through the strategic benefits they expect to gain through social media also might be more prone to overreact and become overly restrictive when something goes wrong. "Organizations trying to minimize risk are actually creating risk," he says.

Facebook Face-Offs

When challenges related to social media do arise, they often are unintentional. For example, when an association finds itself in an awkward position because a volunteer leader criticizes the association in a personal blog, it's usually prudent to pursue a nonlegal solution first.

"We can always turn up the heat, but we can never turn it down, so I always recommend a business resolution and let the relationship play out" before considering legal action, says Barbara Dunn, attorney and partner at Howe & Hutton, Ltd.

One area of social media that is starting to see more litigation is where it intersects with employment law. An August 2011 report by the U.S. Chamber of Commerce found that NLRB had received 129 cases involving social media, most of which were in the initial stages of investigation. The most common claims were that an employer's social media policies were too restrictive or that an employer had unlawfully terminated or disciplined an employee due to the content of social media posts.

In the same month, NLRB's general counsel released a report on the outcome of 14 of these cases. Employers are studying the report as a window on how the board interprets employee rights in a social media setting. Significantly, five case outcomes hinged on criticism of employers' social media policies, which the board deemed to be "unlawfully overly broad" (that is, too restrictive). In four of the cases involving employees' use of Facebook, NLRB found that employees who complained about their employer online were engaged in "protected concerted activity." In five other cases, the employer prevailed.

In short, the NLRB report affirms that employees have the right to discuss the terms and conditions of their employment with each other online, even when customers or others are listening in; an employer cannot prohibit or pull the plug on such communication. "Even if they're not a [member of a] union, every employee has the right to discuss work conditions with another employee, even if it's negative," says Barkan.

Legal issues arise in the hiring context, too. Managers should not be trawling social networks to find out more about job candidates, lest they stumble upon information that, legally speaking, is none of their business. That would pose a liability risk if the organization were later sued for hiring discrimination.

"Anything you can't ask in an interview, you shouldn't be exposed to online," warns Barkan. (See sidebar below.)

In a survey conducted this year by the Society for Human Resource Management, 56 percent of HR professionals said they use social media for basic recruiting purposes, up from 34 percent in 2008. But about two thirds of respondents said they do not use social media sites for screening purposes, primarily due to legal concerns.

Moving at the Speed of Members

For its part, APSA made a decision early on to move into social media conservatively and at roughly the same pace as its members. "We're an academic organization and felt that our members, mostly political science university faculty and students who are moderately tech-savvy, generally would be more comfortable in a semiclosed environment comprised of colleagues within the profession, rather than in an open public forum," says Karpowicz.

APSA consulted Dunn, who provided valuable legal counsel, including help reinvigorating APSA's privacy, data usage, and intellectual property policies. This was especially important because much of what APSA provides to members is proprietary to others.

"Like a lot of associations, we might not have been thinking five years ago about how we needed to keep track, classify, and protect member data for social media usage later. We wanted to be sure we could uphold our covenant with members about usage of their data as we moved into the social media realm," Karpowicz explains.

The result was APSAConnect, a members-only, white-label network created through Higher Logic that allows political scientists to ponder, debate, and exchange information in a professional manner consistent with the ethics of their discipline.

APSA's experience demonstrates why members need associations in the age of social media.

"A member or group of members could create an online community on their own," says Karpowicz. "But the key to our success is our relationship with members, our access to member data, and stewardship of their data."

Whitney Redding is a freelance writer in the Washington, DC, area. Email:
[email protected]

See Also

"Create Social Media Policies with Purpose," by Whitney Redding, December 1, 2011

Sidebar: When Members Get There First

Before they had a chance to create their own dedicated group at LinkedIn or Facebook, staff at the Society for Neuroscience (SfN) was surprised to discover that they already had several groups—complete with "friends" and the SfN logo—on both of the popular social networks.

Legally, the use of an association's name and logo without permission constitutes trademark infringement. But SfN could hardly fault the eager members who beat them to the punch. "It's natural that some of our members were earlier adopters and advocates of social platforms," says Marty Saggese, executive director. "They did a great job of starting to build communities of interest."

The members in question were unaware that they shouldn't use the name and logo without permission, Saggese says, and they responded well to the "old-fashioned phone call" to request a transfer of administration.

"They were more focused on the intended outcome: creating online spaces for discussions about neuroscience among neuroscientists," he says. "In the social media environment, that's unsurprising."

Saggese's advice for peers who face a similar situation: "Start with the perspective that members share a desire to advance the mission; show appreciation to members who are well intentioned but may be overeager; say 'thank you,' but indicate that your association provides a more sustainable way to accomplish the desired outcome."

In some cases, he adds, SfN has engaged the initiating members as "champions" within the organization's official social media ventures.

Sidebar: Bring Recruiting Home

Many third-party social media forums expose a little too much information about job candidates, including photographs and personal information that employers are not allowed to ask about during the hiring process.

Associations can provide a safe place for members to recruit. "Associations have a very strong message to employers," says Christine Smith, president of Boxwood Technology, which provides turnkey online career centers and job boards to associations. She says the message should be: "Come to the professional society where you can source highly qualified candidates without putting yourself at risk for potential discrimination issues."

Smith recommends that associations take these steps to funnel job listings from third-party forums to their own job board, over which they have more control:

  • With your LinkedIn group: Disable the "Jobs" tab and set up an RSS feed to send jobs from your job board to your group. Otherwise, you're promoting LinkedIn's job board service and diminishing the value of both your own job board and your LinkedIn Group.
  • On your Facebook page: Create a "Career Center" tab and populate it with current job openings.
  • On Twitter: Tweet jobs via your Twitter account using the prefix "NEW JOB!" and a suffix with an appropriate hashtag (for example, #jobs) to increase visibility among people not yet following you.
  • Create a policy on your social media properties that any job listings must originate with your online job board. Make the social media "pushes" above part of a paid job listing or an upsell to a listing.
  • Use your social media platforms to initiate career-related discussions. Even without mentioning your job board, this tends to increase job board traffic as well as create dynamic discussions.