I just read an excellent article posted on Law.com from the New York Law Journal on social networking and challenges to business owners and their legal counsel. The authors Christopher Boehning and Daniel Toal focus on a new emerging problems associated with electronic discovery of social networking data. The authors also point out many of the potential problems for employers and businesses related to social networking sites.
When Facebook started exploding in popularity, you could see that the future in communication was social networking. Boehning and Toal cite to a New York Times articles that indicates the future is now upon us as more people spend time on social networking sites than e-mailing. The authors correctly point out something I emphasize to all my business clients: businesses need to have a policy on how to handle social networking sites like Facebook, MySpace, LinkedIn and Twitter. The policy should cover the business’ use of such sites and use by employees. Policies on preservation of the data should also be included as social networking data is akin to the new email.
Lawsuits involving some aspect of social networking sites are increasing in frequency from across the country. Take for example the recent jury verdict in New Jersey against Hillstone Restaurant for violation of the Federal Stored Communications Act.
In that case, the employers accessed an employee MySpace group that was dedicated to criticizing the employer. Although the verdict amount was relatively small, the implications are far reaching. This case was reported on by Charles Toutant in the New Jersey Law Journal. The employees’ trial brief is a good read and spells out some of the arguments in favor of employees’ rights to privacy with social networking sites.
The outcome in the New Jersey case may have been different if the restaurant had a policy addressing use and access to social networking sites. Businesses will have different concerns when it comes to adopting a policy, and no policy will cover every situation. However, the lack of any policy at all is likely to lead to problems and potential litigation. The best way to avoid litigation is to implement a written policy on use and access to social networking sites.