How to Navigate Social Media Legal Risks: A Book Review

This is a book I’ve been waiting for.Working in social media, especially in crisis, I’ve been longing for an accurate, well-written, real-time book on the legal aspects of social media. And haven’t we all? We hear this and that—the Labor Relations Board said this, somebody’s lawyer said that, there was a court ruling over here. There isn’t a norm yet, but that doesn’t mean we aren’t in need of guidelines. Navigating Social Media Legal Risks takes us as close as we can get right now.

Robert McHale (the lawyer) and Eric Garulay (the contributor and social media guru) have put together an invaluable resource for businesses, organizations, and education institutions. I can only hope this is the first of many editions, an evolving work if you will. This field will be rapidly changing for a long time to come, and we are in need of a guidebook on this journey. I wish I could put this in the hands of every social media manager and communications professional out there. But alas.

The first line in the introduction of the book defines why we need this text: “Social media has evolved from chic, to mainstream, to essential. It represents a monumental shift in marketing because it facilitates unprecedented opportunities for companies to connect with their customers.”  Where there are humans interacting, the possibility of trouble exists.

The book is divided into 12 chapters, and each focuses on a particular legal aspect of how businesses and organizations use social media. Read it cover to cover. Find out how promotions and contests can and cannot be done.  The use of social media in pre-employment screening is a hot topic and gets its own chapter. I was surprised to read that information employers find online often leads to an applicant not getting hired. Why did I think that was illegal? It can be if not gathered correctly or it’s not the kind of information you’re supposed to be gathering in the first place.

One chapter deals mostly with the National Labor Relations Act’s impact on social media and how employers can monitor, regulate, and discipline employees. One of my favorite chapters outlines how social media is presently being used in litigation and discovery. Very interesting stuff about what is being used in various court cases…and the outcomes.  Have you got questions about user-generated content and copyright infringement? This book has you covered.  What about advertising on social media?  Is it a free-for-all? Not according to the authors.

Social media is not exempt from trademark protections, brandjacking, or cybersquatting. Learn how to protect yourself and your brand. Then there’s gamification—what a quagmire. The authors try and bring some understanding to the subject's legal issues. There are also chapters on privacy and security compliance, legal guidelines for developing social media policies, and a look at what’s ahead.

Key Concepts I Learned

• Employers should familiarize themselves with “off-duty” laws in their state related to their employees and refrain from considering protected activities in the hiring or firing process.
• If you’re gathering online information on prospective employees, keep records.
• All court rulings are not created equal. There aren’t enough rulings out there yet to provide a consistent base to work from. Be careful. You may think you’re in the right just because a judge in New Jersey ruled one way. You may be in for a surprise.
• Establishing ownership of social media accounts in the workplace is necessary. Personal? Business?
• You don’t necessarily have a right to pry into the personal lives of your employees, even if their information is posted online.
• In some situations, your employees have a right to rip you to shreds online. Learn to live with it. Know your rights and theirs. The National Labor Relations Act has much to say on the matter.
• Be familiar with the Stored Communications Act and know where it applies to you.
• We shouldn’t have to look any further than the recent Penn State scandal to understand the value of digital communications in a courtroom. Your email is not private when it comes to discovery.
• Reputations that are wrecked online can often be repaired, but never fixed. For the most part, we still lack an authority that will order an online entity to take down an errant post.

There is really so much in this book, it’s hard to cover it all. But just try thinking of your worst social media nightmare—have you got it in your head? Chances are it has already happened to somebody and the authors cover it in this book. You better pick up a copy—you’re liable for the information whether you know it or not.

How have you handled the legal end of social? Have you had any firsthand experience yet? I’d like to hear your take.