Social media content either produced by a corporation or an individual – or posted/sent via a social media platform – can impact a multitude of legal concerns: regulatory, enforcement agency, product liability, copyright, trademark, intellectual property, trade secret, wage and labor, the list goes on.
Even still, as lawyers can be a bit (ahem) reluctant to follow new technologies, there are a number of myths and fallacies about social media that are prevalent today.
1. It is going away. We won’t have to worry about it.
Sort of like the Internet and e-mail, it’s a fad, right? Hard to find people who will say it seriously, but I’ve heard more than one lawyer wish it were true, and more than one act like it is.
This is not a legal strategy, this is wishful thinking. If you still believe this, then you have got some bigger issues to deal with. Like reality.
2. We can stop our client from using it and/or our client will have nothing to do with social media.
In the vast majority of companies, the marketing department will win this fight. Period. Because it is an existential battle for marketing departments. Those departments would cease to exist if prohibited from using social media. I heard an anecdote about the General Counsel of a pharmaceutical company announcing that there would be a Facebook page “over my dead body” – approximately a year before the company’s first official Facebook page was launched.
Even in the most restrictive of circumstances, those companies which are highly regulated or litigated , the legal departments may be able to stem the tide temporarily, but just that, temporarily.
Already, most of these industries – Pharma, Energy, Banking – all have launched significant social media programs. So let’s look at an outlier of a company specifically prohibited from advertising their product. Here is a Facebook “interest” page on Camel Lights. As of the day of this post, there were almost 2,000 “Likes”. Notice there are no disclaimers or health warnings.
Why should there be. After all, it’s not an RJR sponsored page. They have no control over it, it is not a property they sponsor. But clearly, it’s an issue the legal department would have to,at a minimum, look at.
3. There is not data on social media that we would want
Here’s a case from England where the company had to go to court to get what it considered it’s trade secrets back. Again this is tantamount to suggest that there would be nothing in corporate e-mail or on it’s website that the corporation would need to maintain in the normal course of business.
And ultimately, there isn’t a legal or document retention framework for only preserving the data you may be interested in down the line. This is not practical in legal theory or in actual every day business practice. This is just not the way the world works, which leads to our next myth.
4. If we don’t save it, we don’t have to produce it.
There are multiple problems here. If the corporation does not have it, the social media platforms do. Oh by the way, the corporation already has a copy of it. The content that was eventually published to a social media platform originated from a publishing platform, on a local drive, in a document workspace – somewhere that data does exist in a readily accessible form. And there were multiple individuals involved in its publishing. No one has Twitter on a tape backup (at least, I hope not).
Particularly in context of corporations and governments proactively using social media as the de facto method of communication with the company’s customers. Look at this Tweet to Bank of America – or at least, Bank of America’s dedicated Twitter feed for customer assistance.
What legal framework allows anyone to delete this? Which leads to our next myth.
5. We can delete social media.
Ask Anthony Weiner how well this worked. It’s not feasible. The Tweet above was found at this site http://www.banktwits.com/ that aggregates the Twitter feeds of banks. There are hundreds if not thousands of these aggregation sites that can be set up within minutes.
So we can say that almost for sure, when a company sends a message on a social media platform, it has a copy of it, the social media platform has a copy, any aggregators have a copy, and search engines – perhaps dozens – also have a copy.
6. We have no legal obligation to save social media absent an impending litigation.
This is an awfully technical argument – and a losing one. It is not one I would ever want to make in front of a judge. A preservation of social media content means the organization will at least be able to know and produce what it said on social media platforms.
But if an entity does not have an archive and does not search that archive for potentially relevant evidence, then the corporation does not produce it. They do not find it. They claim not to have it. What happens when it is then impeached by an investigating or opposing party?
What is the final impact on their credibility in front of that judge? Is this not a potentially seismic legal event, following the company for years in every subsequent litigation? Do the lessons of electronic discovery have to be learned again?
It’s clear. Social media content constitutes potentially relevant electronically stored information.