Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Social Media Postings Lead to Liability?

Does your company maintain a website or blog? Do you allow your employees to blog? Can those postings lead to liability? Every form of website posting is a form of advertising. Does your company have a policy about what can and cannot be posted on its website? A person’s blog? What about Facebook? LinkedIn? Plaxo? Twitter? Can and will those postings be used against your company when claims are made? The general press has reported stories about companies vetting potential employees through their social media postings. It is common place for lawyers to ask witnesses about information on a company’s website. Questions about social media postings are not far behind. There will undoubtedly be situations where social media and website postings end up interpreted as guarantees which result in liability because, at least in the view of some, what was guaranteed was not met. Who in your company regularly reviews website, newsletter and other forms of public information exchanges? When does a blurb become out of date such that it should be removed from the site where it is posted? Is dating the article enough? When was the last time your disclaimers were updated?

As companies struggle to find new ways to interact with their customers, prudence dictates making sure precise language is used, which is the exact opposite of what one thinks about when blogging or Tweeting.

The Financial Industry Regulatory Authority has published guidelines for financial institutions to follow so their postings protect investors. While such a development is not surprising when directed to financial institutions given the current economic meltdown, one aspect of the guidance is worth noting here. How do you keep records of what is posted and when? The recommended guidances can be found at: www.finra.org/web/groups/industry/@ip/@reg/@notice/documents/notices/p120779.pdf and make a good starting point for any company’s social media policy.

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