Social media will land some Canadian companies in court

A recent Toronto conference has raised the alarm: Canadian companies had better draft policies for social media in the workplace. Otherwise, they could end up in court and get hit hard by negative publicity generated by the likes of Facebook and Twitter. That's the word from Social Media: How to effectively measure ROI and manage risk in your organization, held December 2-3 at the Sutton Place Hotel. "You need to sit down and think about your corporate objective and how you want to use social media," said Marisia Campbell, a lawyer who serves as associate counsel for QNX Software Systems Co. in Kanata, ON. While there is no case law on the books about social media communication in Canada, it will eventually hit the courts, said Campbell. "In the U.S., there is starting to be case law, and there are a lot of settlements," said Campbell. "You will be hearing more and more about these cases. Right now, the issues are hypothetical and theoretical. The question is how do you prevent from being a test case." Campbell was one of several panellists at the conference, which was organized by The Canadian Institute, who noted both the pros and cons of engaging in social media forums. "Social media can be one of the best marketing and public relations tools out there, and it doesn't cost a lot," she said. If employees speak in a flattering tone about their employer, it is a great advantage for an employer. The flipside is that disgruntled employees can tarnish the image of a company with negative chatter on social media networks. "There are both good things that can come from social media," said Campbell, who previously worked in the Ottawa office of Stikeman Elliott LLP in the firm's intellectual property and technology law groups. "We are not saying to avoid social media, but to identify legal risks associated with social media." Technical companies often use tools such as wikis to build support for their products and get feedback from their customers on products, noted Campbell. Another application of social media is recruitment: human resources departments at many North American organizations have tapped into the power of social media to attract a talented pool of candidates as prospective employees, particularly those in Generation Y who frequently engage in social media. One concern is if employees divulge too much company information that is competitive in nature and violates trade secrets via social media forums. Intellectual property, for the most part, needs to be guarded and ensure that it does not reach the wrong hands, according to Campbell. Still, the release of market-sensitive information is more of a touchy topic in industries such as financial services or pharmaceutical research, but is less of a thorny subject in the world of technology. "Policies that employers have in place are key," said Campbell. "You want to have policies in place that allow you to monitor your employees at work." A policy needs to be clearly communicated to employees that a computer or technological device is owned by the corporation, and that the corporation has the right to track an employee's use of e-mail or use of social media on their computer, even when the device is portable and used outside the workplace. "You don't want to encounter a problem if the employee says I didn't know ," she said. "You need to make it clear that they should not have a privacy expectation." Tudor Carsten, a lawyer in the Toronto office of Davis LLP and member of the firm's Video Games & Interactive Entertainment Law Practice Group, cited examples in the United Kingdom where employees of Virgin Airlines were fired for making derogatory remarks about the airlines' passengers on a Facebook page. Employees, however, were re-instated because it was argued that they were not cognizant about the company's policies. "It was argued that the policies were not brought to their attention," said Carsten. "It highlights that it is important to have a clear policy and communicate it very clearly and emphatically to your employees." One US study found that about one in four employers of a survey of 500 organizations indicated they would discipline employees for improper use of e-mail or social media networks, noted Carsten. Banning access to e-mail, the Internet, and social media in the workplace is not a smart proposition or healthy response to abuse of social media networks, he added. "When establishing a mitigation strategy, you have to establish a comfort level," said Carsten. "Zero tolerance is a policy that is unrealistic. Employees will resent if they can't use the Internet." Carsten proposed that companies could provide employees with limited access to the Internet during their lunch hour or on breaks during the workday, but that policies are dependent on the workplace and the culture. Firms can take proactive steps and look to major organizations such as Dell, Cisco Systems, and IBM that have drafted comprehensive company policies on engagement in social media, according to Campbell. Still, firms need to consider their own corporate identity before adopting any established guidelines as their own. "These are three of the companies I would take a look at," she said. "You can have the lawyer at your firm look at those guidelines and look at your own corporate objectives and the culture of the company." Just as facsimiles and e-mail represented new forms of communication and forced lawyers to grapple with these media when they were first introduced, social media networks are introducing unchartered territory for lawyers and imposing new challenges to develop risk mitigation strategies in the Web 2.0 space.

Social media will land some Canadian companies in court

News | December 12, 2008

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