Social Media, Common Sense, and the Law

Today one of your customer contacts sends you an email invitation to connect on LinkedIn. You click on the email invite, visit the contact’s profile, check out his picture and profile information, and then click on the “Connect” button.

In the days that follow, the two of you start corresponding via LinkedIn, exchanging quick messages about business-related topics. And then, down the road, you discover that this person you’ve been having work-related conversations with is not really your customer but someone who has stolen your client’s identity and set up a fake account on LinkedIn with his name and picture to fish for competitive information.

Could this really happen?

Well, if Notre Dame football star Manti Te’o could have a virtual relationship with a fake girlfriend, complete with her own Facebook page, then I believe a similar possibility could exist in the business world.

In fact, cases of fake or stolen identities on social media sites are on the rise, according to attorney Daliah Saper, an expert on the legal issues associated with social media. Daliah was recently featured on the ABC news program 20/20 commenting on the Manti Te’o case, and she was my guest last week on Talking Logistics, where I asked her about my hypothetical LinkedIn example above. Check out the short video clip below for her comments.

You might say that it’s common sense not to share sensitive business information with others via social media sites. But as we’ve seen time and time again, such as the CFO who was fired for sharing company information on Twitter, social media has a way of dulling people’s common sense. As Dalia said in our conversation:

A site like Twitter, or even a Facebook update, allows you to make a quick remark without very much effort [compared to writing a blog or a making a formal statement], and so people use Twitter almost like they do a live presentation or a real world instantaneous interaction, and there are less steps involved before you make that statement, and [senior executives] are no less, you know, stupid when it comes to these things. You would hope they wouldn’t be, [but] of course there are plenty of examples where [an executive or employee] is quick to fire something off their mobile phone only to regret it or try to delete it later.

In short, simply relying on employees to use common sense when it comes appropriate use of social media is a risky bet. You need to have clear and specific social media policies and guidelines in place, along with ongoing training and communication.

But this is easier said than done, as Gretchen Gavett highlights in her recent HBR blog posting, “Is Your Social Media Policy Useless?” The line between employee privacy and employer rights remains fuzzy when it comes to social media, so creating a policy that protects both, and also complies with existing labor and other laws, is not a straightforward task, as the following excerpt from the posting illustrates:

A January 2012 NLRB memo highlights a year’s worth of their decisions involving social media, 14 in all. The cases run the gamut: There are situations where an employee was wrongly fired based on a broad social media policy, as well as cases where employees were fired legally even though their company’s policy was deemed problematic.

Many companies still block access to social media sites, in part to minimize or avoid some of these legal issues. But considering that many employees are already accessing social media sites on their smartphones or home computers for work purposes, my view is that blocking social media sites might create a false sense of security for companies. It would be better, in my opinion, for companies to proactively address these issues rather than try to avoid them. For related commentary, see “Why IT Blocking Social Media Sites is Futile (and The Wrong Approach).”

The bottom line is that companies and employees need to understand the legal issues and challenges associated with social media, especially as its role in B2B business processes continues to grow. Part of the challenge is that the law is having a hard time keeping up with the rapid change of technology and all the new legal issues social media is creating. As a result, many corporate lawyers are not prepared to address these emerging issues, which is why law schools are introducing classes and training programs in this area.

Watch the rest of my conversation with Daliah for additional insights on this topic. And if you haven’t set up accounts on Twitter, Facebook, LinkedIn, and other social media sites, go ahead and do it today — before a con artist beats you to it.