Canadian corporations wrangle with legal implications of social media

For today’s corporations, there are countless benefits to using social media to create brand growth and loyalty. We’ve discussed many of these benefits in previous installments of the digital literacy series on this blog. Social media is new and shiny – but it’s also here to stay and it’s growing and changing every day. Corporations need to be paying attention – keeping up can be the difference between success and failure. But social media is also making an impact in another real world way: lawmakers and those who uphold the law are having to evolve to keep up. And this too has implications for corporations.

According to Tony Morris, a partner at Norton Rose LLP, whose practice focuses on technology, privacy laws and e-business, if corporations aren’t paying attention to the laws that apply to social media, they may find themselves in serious legal trouble.

There are a few very good examples of how Canadian law is converging with social media. The Privacy Commissioner of Canada has been paying attention to the privacy concerns that social media sites like Facebook and Google present. At the same time, the courts have given police the power to seek disclosure of comments and content posted on Facebook to be used as evidence. This topic has been quite controversial recently thanks to the ongoing discussions around Bill C-30 and the #TellVicEverything backlash it inspired on Twitter.

Morris points to Canada’s robust privacy laws as the first way that corporations can find themselves in hot water. Corporations need to be paying attention to exactly what is being posted on their various sites – protecting employee information must be a priority.

Another major issue to consider is defamation. Depending on the corporation, social media may open the door for complaints and inflammatory comments. Any responses to such comments must be made carefully, as one mistake could have serious legal repercussions. As an example, Morris points to the fact that the Supreme Court of Canada has ruled that if a person hyperlinks to a defamatory website and endorses the comments on that site, they could be found guilty of defamation.

A third important consideration pertains to security laws. Corporations could face serious legal ramifications if they post confidential information and trade secrets online.

So what can corporations do to protect themselves? Morris says the answer lies in a well thought out social media policy, based on a “Three leg policy stool”:

1. The policy itself: The policy must set out specific guidelines for what the types of social media and online behaviour the will be expected of all company representatives (employees, contractors etc.) to follow. This should include guidelines around propriety information, privacy and defamation. Put this policy in writing.
2. Monitoring use and compliance: The Canadian courts have said that employers, within reason and if properly implemented, can monitor the actions of their employees on company technology, including emails. The policy must be communicated clearly to every representative of the company  – provide seminars and training so that everyone understands what is expected of them.
3. Enforcement: Set up a progressive and reasonable discipline system for those who fail to comply with the policy and make sure all company representatives are aware of it. This can include offering a warning (written or verbal) and depending on the seriousness of the offence, even termination. Above all, enforce the policy consistently.

While legal ramifications of making a mistake on social media can seem overwhelming and even a bit scary, Morris says it’s a fine balance.

“My key message is that social media can be incredibly beneficial to corporations – if it’s done thoughtfully. Social media can be a two-sided coin: tremendously effective from a branding perspective but with serious repercussions when used without thought and planning.”