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Tue, Dec 27, 2011

Global Issues

Employment Law and Social Media: Stopping Slander and Libel Online

Yelp. Foursquare. Urbanspoon. Glassdoor. Vault.

What do all of these sites have in common? Chances are, if you do a search, your company is listed on at least one of them. You don’t have to be a business or consumer brand anymore to be publicly reviewed – and sometimes lambasted.

If it’s happened to you (and if you’re a small business owner or employer, chances are, it has), these negative reviews understandably create a lot of anger – and a lot of questions.

Questions like, “What if our dirty laundry is getting aired by our former or current employees?”  “Can I sue Google?  What about Yelp?”  “How can I protect my company from this bad press now that it’s out?”

Some good news: while free speech remains just that, the law has put limitations on how that right to speak freely can be exercised.  When the message is both damaging AND untrue, it’s liable – and a potential legal liability.

Libel is defined as a false publication, as in writing, print, signs or pictures, which damages a person’s reputation.

Specifically, libel must include a purposeful lie about someone (whether that’s an individual or an organization).

Online Compliance and Employment Law: The Internet Tough Guy Syndrome

“People do and say things online that they aren’t likely to do in the physical world,” said David Ardia, director of the Citizen Media Law Project at Harvard Law School in Boston.

Libel suits related to social media are rare nationwide, he said, in part because users can fire off instant replies to nasty comments.

For, example, that employee who had to choose between an extra shift and termination, the relative safety of being retaining their online anonymity creates an environment where people do and say things that they wouldn’t “in real life.”

But when it comes to libel, what happens online isn’t exempt from carrying significant legal implications offline.

Social Networks and Slander: “Who Can I Sue?”

Since the advent of social media, misguided executives and business leaders have leaned on HR and legal departments, asking if they can “sue the Google,” or in the very least, find out who that jerk is who posted that they were a bad boss online.

The Communications Decency Act (or “CDA” : 47 USC 230), protects website owners from being held liable for content created by their website users.

But the question remains: Could you possibly sue the actual person that generated the content?

Maybe, if you knew who they were.

Website owners don’t have to divulge this information to you, nor do they have any responsibility to capture or supply any user info at all.

Finding who to sue can be an issue when it comes to most the review sites – not to mention the thousands of dollars and countless hours required to subpoena user records from social networks, track down identified users, sue them and win.

While you might wind up with a moral victory, there’s a good chance that the legal costs far exceed the business value of litigation.

Social Media Policies: Controlling the Conversation

While it’s not HR’s job to be the Internet Police, we CAN put policies in place to help our employees understand the power – and responsibility – that comes with using social media, and to help them understand that whatever information they float out on the internet ether is far from ephemeral, but rather, a permanent record.

Of course, complying with these policies and procedures after they depart the company is completely at the discretion of the employee, but helping them understand the implications of publicly posting libelous information (and what you’ll do about it) is often an effective deterrent.

Only 29% of companies have social media policies, so there are a lot of employees out there surfing and posting on the web with zero guidance.

Top Employee Communication Tips for Staying Ahead of the Libel Game

  • Disclosure: Make sure employees understand that they are still bound to not disclose trade secrets and confidential information on the web, even if they think it’s private or anonymous.
  • Acceptable Content: Discussing insider information, customers, clients wouldn’t be ok at a crowded restaurant, so it’s not ok on the internet.
  • Privacy Settings: Many employees, especially those new to social media, are unaware that they can “lock” down content. Just educating them on this facet of security may save you some grief.
  • ‘Google Never Forgets’: This is a good phrase to use. No matter if they delete it, edit it, amend it- there’s still a record of what they said somewhere.
  • Repercussions:  Let your employees know that the company isn’t prohibiting them from using social media, but that the same repercussions would stand if they were on a street corner, sharing confidential information or making slanderous claims to passersby.

Remember:  the key to both libel (written word) and slander (oral communication) is that the information being transmitted must be false.  If you don’t like what’s out there, and it’s true, then it’s not actionable.  But avoiding these incidents, for the most part, can happen by treating your employees like adults and helping them understanding your company’s social media policy.

Letting them know your expectations – and the legal implications – of making disparaging comments of a professional nature in a public setting is often the best medicine for preventing, and curing, potentially damaging content.

Elizabeth Lalli-Reese, JD, SPHR, is the Head of Corporate Human Resources for ACE Cash Express.  With over 10 years in HR, employment law and recruitment, Lalli-Reese works to give human resources a strategic role rather than a tactical one.  She has a “seat at the table” as someone who knows how human capital can impact operations and the bottom line and believes “it’s no fun if we’re not making money.”

Lalli-Reese has been a featured blogger on TalentCulture, MonsterThinking and Glassdoor.com; her personal blog can be found at TXStrategicHR.

You can connect with her on Facebook by clicking here, or find her on Twitter @txstrategichr.

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