Frictionless eDiscovery; social media addicts beware…


eDiscovery just got a lot easier…for opposing counsel.

Facebook’s new system to auto-share what you do around the web may catch many Facebook enthusiasts off guard. Even “power” users of Facebook will probably run into trouble with this “frictionless sharing” feature. Once it’s enabled on a site you won’t get any other warnings that you “tracks” are being broadcast to large numbers of people.  In fact, even those people who know exactly how this new feature works will need to be on guard against sharing some seriously embarrassing and or compromising updates.

For those not in the know, Facebook is making sharing even easier by automatically sharing what you’re doing on a growing community of Facebook-connected apps.

Huh? It could be the news articles you read online, the videos you watch, the photos you view, the music you listen to, or any other action within the site or app. In the future it could be the “stuff “you buy on-line or the profiles of people you view, or diseases you looked or the fact that you searched for information on the term “formaldehyde” on a specific day…

To be fair, currently,  you must explicitly authorize a site or app to share your information with Facebook. How this sharing mechanism works depends on the app. Authorizing the Washington Post or The Guardian Facebook apps allows you to read those news sites right within Facebook. The downside, however, is that everything you read is shared back to your friends via a timeline… This capability may also effect those news organizations which have jumped into this partnership opportunity. These news organizations may see a drop in views because potential readers will now have to first consider how viewing a particular story will affect their reputation; Do I really want to click on this story knowing my “friends” will know I viewed this?

A timeline… REALLY! Do your friends really need to know you viewed a website titled “BieberFever.Com” at 1:13 am last Thursday morning? Or that you read an article on setting up a Swiss bank account 57 minutes after you received notice of a pending lawsuit? Talk about making the opposing counsel’s job easier…every discovery request will automatically include Facebook accounts.

Another group that needs to be careful are employees. I can imagine an HR representative viewing an employee’s Facebook page to verify, via the employee’s timeline, they have been surfing the web for the last 17 days.

I have repeatedly warned friends that social media sites like Facebook are potentially dangerous in that what you (or an application) post to your social media site could be used against you by potential employers, current employers or attorneys. One question I suggest all social media addicts ask themselves before they post is; “Is this something I would feel comfortable showing up on the front page of the New York Times?”…Because someday it could.

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Who owns an employee’s social media account?


The New York Times published a story on December 25th of this year  titled: “A Dispute Over Who Owns a Twitter Account Goes to Court” raising questions around the ownership of a Twitter account that was opened by an individual who included the name of the company he was working for in his account name and posted to the Twitter account during business hours. The NYTimes story posed the question: Can a company cash in on and claim ownership of an employee’s social media account, and if so, what does that mean for workers who are increasingly posting to Twitter, Facebook and Google Plus during work hours?

The story revolves around a lawsuit filed in July of 2011 by the company Phonedog.com.  The defendant, Mr. Kravitz, a writer, began posting to his Twitter account under the name “Phonedog_Noah” and over time collected 17,000 followers. In October 2010, Mr. Kravitz quit his job at Phonedog.com telling him that he could keep his Twitter account in exchange for tweeting on their behalf occasionally and Mr. Kravitz agreed.

Mr. Kravitz changed the name of the account to “NoahKravitz” keeping all the followers to the original account and began posting.

The question the New York Times posed is an interesting one but I think another question that should be asked is; what should an employee do to ensure there is no legal claim by their employer to “their” social media presence?

First, the employee should inquire within their employer as to any social media policies that exist. Most of the employer social media policies I have seen go to great pains describing what employees can and can’t post about the company and its business to social media sites. Corporate content such as upcoming product releases, sales data, and company rumors are the most popular types of restricted content highlighted. Based on this case, additional policy elements should include not including the organization’s name in the employee’s social media handle as well as not accessing or interacting with the employee’s social media accounts during work hours and from infrastructure owned by the organization.

If the organization doesn’t have a published social media use policy, then the employee should follow common sense and:

  1. Not post about your employers business especially confidential content
  2. Not post organization or staff rumors
  3. Never include the organization’s name in the social media handle (remember, corporate brands are valuable and most companies will aggressively defend them
  4. And never access social media accounts while on “company time” and from company infrastructure

Like the case mention above, if the organization asks its employees to post comments about the organization, employees should get the request in writing first acknowledging the organization will not claim ownership of the employee’s social media account is the employee does what is requested and also describing the types of comments the organization would like the employee to post. The employee will then have to decide if they want to use their social media account for organization business.

The same holds true for creating a social media account which includes the organization’s name as in the case mentioned above: Phonedog_Noah. In many cases creating a social media account with the employers name may be considered part of the employment agreement and could be considered an organization’s asset. The employee should always ask if that is the case and if the employer doesn’t claim ownership at the start, the employee should get a statement in writing stating the employer has no claims on the social media account.

A social media presence has become an integral part of organization marketing and all parties involved need to understand up front what the expectations are and who owns the asset.

Frictionless eDiscovery; social media addicts beware…


eDiscovery just got a lot easier…for opposing counsel.

Facebook’s new system to auto-share what you do around the web may catch many Facebook enthusiasts off guard. Even “power” users of Facebook will probably run into trouble with this “frictionless sharing” feature. Once it’s enabled on a site you won’t get any other warnings that you “tracks” are being broadcast to large numbers of people.  In fact, even those people who know exactly how this new feature works will need to be on guard against sharing some seriously embarrassing and or compromising updates.

For those not in the know, Facebook is making sharing even easier by automatically sharing what you’re doing on a growing community of Facebook-connected apps.

Huh? It could be the news articles you read online, the videos you watch, the photos you view, the music you listen to, or any other action within the site or app. In the future it could be the “stuff “you buy on-line or the profiles of people you view, or diseases you looked or the fact that you searched for information on the term “formaldehyde” on a specific day…

To be fair, currently,  you must explicitly authorize a site or app to share your information with Facebook. How this sharing mechanism works depends on the app. Authorizing the Washington Post or The Guardian Facebook apps allows you to read those news sites right within Facebook. The downside, however, is that everything you read is shared back to your friends via a timeline… This capability may also effect those news organizations which have jumped into this partnership opportunity. These news organizations may see a drop in views because potential readers will now have to first consider how viewing a particular story will affect their reputation; Do I really want to click on this story knowing my “friends” will know I viewed this?

A timeline… REALLY! Do your friends really need to know you viewed a website titled “BieberFever.Com” at 1:13 am last Thursday morning? Or that you read an article on setting up a Swiss bank account 57 minutes after you received notice of a pending lawsuit? Talk about making the opposing counsel’s job easier…every discovery request will automatically include Facebook accounts.

Another group that needs to be careful are employees. I can imagine an HR representative viewing an employee’s Facebook page to verify, via the employee’s timeline, they have been surfing the web for the last 17 days.

I have repeatedly warned friends that social media sites like Facebook are potentially dangerous in that what you (or an application) post to your social media site could be used against you by potential employers, current employers or attorneys. One question I suggest all social media addicts ask themselves before they post is; “Is this something I would feel comfortable showing up on the front page of the New York Times?”…Because someday it could.