Erin Schulte Swanson presented on the social media explosion and its implications for law. Politicians, celebrities, and organizations use social media, but the law has not caught up. Social media posts can be used as evidence in court and cause liability issues for employers. Companies should establish social media policies for employees and monitor posts to minimize legal risks. Policies must comply with labor laws and address account ownership and content approval.

1. October 25, 2012
Presented by
Erin Schulte Swanson
@esswansonlaw
facebook/es.swanson.law
Erin Schulte Swanson
3340-B Annapolis Lane N Plymouth, MN 55447
www.swansonlawmn.com (612) 564-5292

2. The Social Media Explosion
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3. The Social Media Explosion
 Politicians are using Twitter and Facebook to help their
campaigns.
 Celebrities use social media to stay in the public eye.
 The Dalai Lama posts advice on Twitter daily.
 NFL fines players for tweeting during games.
 White Sox manager was suspended for complaining about
an official on Twitter after he was ejected from a game.
 Regulations for the 2012 Olympics restricted social media
use.
 KLM is testing a new “Meet and Seat” program.
© 2012 ES Swanson Law, PLLC. All rights reserved.

4. In the Courtroom
 Impeaching witnesses
 Confessing guilt
 Modifying alimony
 Screening jurors for bias
 Serving summons (not yet in the United States)
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5. The Point:
IT’S ALL EVIDENCE!
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6. Social Media Law
 The law has not kept up with social media.
 Lawsuits regarding social media use by businesses are
now cropping up.
 It will take time for the law to catch up to the social media
explosion.
© 2012 ES Swanson Law, PLLC. All rights reserved.

7. Minimizing Damage from
Employee Posts
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8. Problem: Damage to Reputation
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9. Problem: Loss of Clients/
Business Relationships
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10. Problem: Employer Liability
for Employees’ Posts
 Employer is liable for the acts an employee performs
within the scope of his/her employment.
 Even if a post is made outside the scope of
employment, defense of a claim can be expensive.
© 2012 ES Swanson Law, PLLC. All rights reserved.

11. © 2012 ES Swanson Law, PLLC. All rights reserved.

12. © 2012 ES Swanson Law, PLLC. All rights reserved.

13. Solutions
 Determine whether you want to allow social media use at
work or using work resources.
 Establish a policy for employees’ proper use of social
media accounts.
 Monitor employee posts on company accounts.
© 2012 ES Swanson Law, PLLC. All rights reserved.

14. Social Media Policies: Key Points
 Whether social media use on company time is allowed
 Whether social media use on company resources is
allowed
 Prohibit disclosure of confidential information
(regarding the company or its clients)
 Prohibit sharing of inappropriate photos or images
 BEWARE: Policy cannot violate the National Labor
Relations Act (NLRA), which allows employees to
communicate among themselves to protect or protest
their working conditions.
© 2012 ES Swanson Law, PLLC. All rights reserved.

15. Hotdogs:
Protected Under the NLRA?
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16. Social Media Policies: Key Points
 Notice of monitoring of company
computers, tablets, phones, etc.
 Prohibition of false, derogatory, or negative posts
regarding the company or its employees, vendors, or
service, except for communications protected under the
NLRA
 Notice that violation may lead to disciplinary action, up to
and including termination of employment
© 2012 ES Swanson Law, PLLC. All rights reserved.

17. Who owns the account?
 Tricky when part of an employee’s job is to post on social
media accounts
 Copyright considerations
 Right to privacy issues
 Company marketing & branding
 Recent case: Maremont v. Susan Fredman Design Group
© 2012 ES Swanson Law, PLLC. All rights reserved.

18. © 2012 ES Swanson Law, PLLC. All rights reserved.

19. © 2011 ES Swanson Law, PLLC. All rights reserved.

20. Solutions
 Specify in the governing contract who will own the
account.
 Use labels to identify the author of specific posts:
© 2012 ES Swanson Law, PLLC. All rights reserved.

21. Additional Policy Points for
Social Media Employees
 Clearly define ownership of accounts and content (must also be
addressed in employment agreements)
 Establish a content approval process
 State restrictions on user names/account establishment process
 Outline expectations of types and frequency of posts
 Set timelines for responding to inquiries and interactions
 Set boundaries for ethical and appropriate interaction online
 Define a complaint response procedure
 Establish rules for sharing photographs of people
 Explain rules for use of trademarks and copyrights
 Designate individual(s) to contact with questions
© 2012 ES Swanson Law, PLLC. All rights reserved.

22. Questions?
erin@SwansonLawMN.com
612-564-5292
www.SwansonLawMN.com
twitter.com/esswansonlaw
facebook.com/es.swanson.law
Erin Schulte Swanson