Over the years, social media has quickly taken the reign as one of the most utilized marketing tools of businesses, both large and small. Its efficiency and effectiveness, mixed with its low-cost, has caused many businesses to directly implement social media as not only a marketing tool, but as a tool to drive customer engagement.

Indeed, social media has been a “blessing” to companies looking to drive a deeper, more continuous connection with its consumer base. However, social media does have its drawbacks.

In Here Comes Everybody: The Power of Organizing Without Organizations, Clay Shirky states, “Our social tools are not an improvement to modern society, they are a challenge to it.” Outside of the societal implications of that statement, business owners need to understand that with the power of social media comes great responsibility.

So what are the major danger zones of businesses using social media? Here is a short-list with quick explanations of the top 3 areas and how to minimize risk:


  • Discrimination – the trend for companies looking to hire has been to research candidates via social media outlets as a pre-interview screening. While this can give valuable insight as to who the candidate really is, it can also lead to claims of discrimination. Mining social media in this manner will undoubtedly uncover certain characteristics about the individual that are of a “protected class” (i.e. age, race, religion, sexual preference, disability etc.). If the individual is not hired, the fact that you mined their social media could be used as evidence of discrimination.

Tip: If possible, conduct the social media search AFTER you have already had the initial face-to-face interview OR keep meticulous records as to why the individual was not hired.

  • Harassment – It is important to understand that online harassment (aka “cyberbullying”) is the same as in-person harassment. For example, if one employee repeatedly “likes” or makes inappropriate comments on the social media of another employee, that can be seen as workplace harassment

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    . Likewise, if an employee or manager posts or makes malicious/hurtful comments about another employee or superior, that is also harassment.

Tip: Just because it is online doesn’t mean it’s off limits. Be mindful of what you post and remember that it’s never as “private” as you think.


  • Trade Secret – It is critical that you always protect your company’s ideas. Trade secrets are an area of intellectual property and they constitute proprietary recipes, processes, methodologies, formulas, etc. A trade secret is only protectable so long as it is not generally known to the public. Many companies have lost trade secret protection because one of its employees has leaked that information via social media… and once it’s lost, it’s lost forever.

Tip: Understand that there is nothing secret or private about social media. Keep trade secrets a secret.

  • Content Ownership – If an employee creates a social media account based on the work that he or she does for a company, who ultimately owns that contact list or aggregation of information? Likewise, if an employee has a previously existing account but begins gaining a lot of followers/connections based upon his or her employment with a company, who owns that contact list? Absent strong contractual language, the answer is “no one knows”. Courts have decided both ways, some in favor of the company, some in favor of the employee.

Tip: Draft precise, concrete language that grants the company sole ownership in any customer lists and/or information gathered via social media done within the scope of that person’s job description.


  • Defamation – Defamation is the act of damaging the good reputation of another. Because many people are overly reliant on the “private” nature of conversations had on social media, they make defamatory comments that speak directly to the character and/or integrity of another. This also happens when businesses post about the practices of another business. Courts have been unclear whether posts made to a small group would meet the legal standard for defamation, but it is certain that if that post went public, the person/company making the statement would be held liable.

Tip: If you can’t say anything nice, don’t say anything at all. It is better to be safe than sorry when it comes to social media.

  • Privacy/Publicity – Social media is the ultimate “sharing” platform, but in that sharing you have to remember that people have certain rights to privacy and publicity. Randomly posting pictures and videos of people without there consent is a quick way to have a claim of invasion of privacy brought against You/your Company.


***3 Party (User Generated) Content – As a bonus, it is important to note that your company is not only liable for the content that you and your employees post to social media. Without taking the proper steps, you may be liable for the content that other people post on your social media site(s) as well.


The solution to all of this quite straight-forward: for employees and company personnel, create a company culture that clearly addresses these issues; for your website, create a terms of use policy; and for your company’s social media page(s), monitor what 3 parties are posting! Engage a qualified attorney to not only ensure that your policies adequately address all necessary concerns.