Social media: Risks and best practices (Webinar)

Dec 19, 2018

Social media is all-pervasive; it has quickly infiltrated virtually every aspect of our day-to-day lives – both personal and professional. With these innovative ways of communicating and interacting come a whole host of legal and reputational risks and considerations. Today, more than ever, it’s essential that in-house legal teams gain a thorough understanding of those risks so they can ensure they have the necessary strategies and policies in place to address them.

In the fourth webinar of the Best practices for the legal department of tomorrow series developed by Osler’s Litigation and Dispute Resolution team, Sven Poysa, a partner in the firm’s Employment and Labour Group, Evan Thomas, Counsel in the Litigation Group, and Sonja Pavic, a litigation associate in the firm’s Toronto office, provide valuable insight into the range of risks associated with social media use and offer best practice recommendations on dealing with them effectively.

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Video transcript

EVAN BARRS: Good afternoon, and welcome to Osler's webinar series best practices for the legal department of tomorrow. I'm Evan Barrs. I'm an associate in Osler's Litigation Department in Toronto. This is the fourth in a series of webinars that Osler is presenting on how your in-house legal team can position itself for success in this ever-changing legal landscape. In today's webinar, we will be discussing best practices for in-house counsel to address the legal risks and issues associated with social media.

I'm joined today by Sven Poysa, a partner in Osler's Employment and Labor Group with significant experience in all areas of employment and labor law. And Sonya Pavich, an associate in Osler's Litigation Department with a practice focused on risk management and crisis response, regulatory and internal investigations, and class actions. And Evan Thomas, an associate in Osler's Litigation Group with a practice that includes cases involving technology and data such as disputes involving data licensing, privacy, data security, IT projects, online defamation and the protection of confidential information.

If you have any questions during the webinar, please email us or type them into the area provided on your screen, and we will respond to them as soon as time permits. With that, I'm going to turn it over to Sven, Sonya, and Evan.

SONYA PAVICH: Thanks, Evan. And welcome, everyone, to this webinar. In today's webinar, we're going to cover the key aspects of social media risk that we think are most relevant to you as in-house counsel. First, my colleague, Evan Thomas, will provide an overview of various social media risks and the potential legal responses to issues that may arise. I will then discuss the rules of the legal team versus public relations consultants and how to coordinate between the two. My colleague, Sven, will then discuss social media and the employment relationship, including best practices for social media policy.

To set the stage, we all know that social media is pervasive. It has changed the way people communicate, exchange information, and do business. The prevalence of social media comes with a whole host of risks and considerations, including legal risks, reputational risks, and HR and employment issues. And when we talk about social media risks or crises today, we are really referring to a broad range of situations that generally fall into two buckets.

First, there's social media that can trigger a crisis situation, such as if a company posts a tweet that goes horribly wrong and has major media backlash. Or social media can amplify a crisis. An example of that could be where an issue is made public through a news release or a whistleblower report, and then social media becomes the catalyst for a broader public reaction. With that backdrop in mind, I will turn it over to my colleague, Evan Thomas, to talk about some of the legal risks.

EVAN THOMAS: Thanks, Sonya. It's important to remember when talking about social media risks that the risks around marketing and advertising have always existed because marketing and advertising are essential aspects of many businesses, but particularly, consumer businesses. So what I'm going to be focusing on is about how the use of social media to advertise or market a business or brand or to otherwise engage with customers or others can create new or different legal risks that in-house counsel need to consider. And these risks they arise from certain unique aspects of social media as compared to more traditional forms of advertising and marketing or customer engagement, such as print or TV advertising.

So, first of all, social media moves fast. It moves extremely quickly, essentially in real-time. It's also a dialogue with consumers. Unlike TV or print, more of a one-way communication with customers about the brand or the product, social media lends itself to an ongoing conversation, with customers responding to the brand and the brand responding to the customer.

Thirdly, customers expect social media to be authentic and organic. And they're very alive to where social media presence is inauthentic or fake. So these particular features of social media, which are many ways, its strengths. They also create certain risks. And the first of these I'm going talking about is the risk associated with misleading influence or advertising. So now, of course, traditional advertising has always had celebrity endorsements. We've all seen TV and print ads with a celebrity endorsing a particular product or brand.

Now, online on social media, consumers will routinely follow online personalities, and these personalities they are important sources of information for consumers. They provide product reviews. They provide recommendations. They demonstrate how products can be used. And their insights and information into products can influence the purchasing decisions of these interested consumers. They are their influencers.

And unlike more traditional media, they can range from, otherwise, private individuals who might have a following of hundreds, maybe thousands of followers to global celebrities whose audience is counted in the millions. And so, advertisers are prepared to pay or otherwise compensate influencers to create and share content that features their products or brands. This might be a blogger who reviews a product or service or perhaps is an athlete who mentions a dietary choice, or a fashion and lifestyle person who hosts content featuring clothing.

So now, these influencers they can be paid, sometimes quite significant amounts of money or other compensation to post content that helps promote a brand. This is influencer marketing. And this is a increasingly essential part of social media marketing strategies. And so, of course, the issue for in-house counsel is how can your organization maximize the benefit of this new means of reaching consumers without accepting an undue increase in the level of risk.

And one of the risks that arises that when dealing with a third party that has his or her own brand, there is a risk if that person is using their influence to promote or otherwise benefit your product or brand on the basis of compensation, and that relationship is not being disclosed to the consumer. That creates the risk that the influencer's efforts on behalf of your brand or your product are misleading or otherwise deceiving consumers into believing something that is not true. And, in fact, the Canadian Competition Bureau has issued a policy on influencer marketing that makes precisely this point.

So the issue for general counsel and external counsel is how to advise on these influencer partnerships and how to advise, in particular, on how they should be disclosed to consumers in a way that's mitigating this risk of misleading consumers, but without negatively affecting or at least unduly negatively affecting the authenticity and the impartiality that is the value of influencer marketing. So on a somewhat related note, related risk, which is using the names and likenesses of influential people to promote a brand, but without such a partnership without consent. And this risk arises because social media moves fast. This is part of the appeal of social media consumers like that brands our products are reacting and engaging with them on a real-time basis.

It's often those in charge of social media marketing feeds want to capitalize quickly on fortuitous developments in an effort to boost the exposure of the brand. And so, a natural example would be a celebrity using the product or otherwise being associated with the brand. That's something that a social media marketing manager may want to capitalize on and use this organic boost to the brand by making sure people know about it. Of course, the risk is that using someone's name or likeness without their consent is something that may be actionable, and indeed this has happened.

There was a drug store chain in the US that tweeted a photo of a celebrity who visited one of the stores. And she promptly turned around and sued them for using her name and photo without consent. Now, stepping back, you might question how could this possibly happen because we would never think no responsible organization would ever think of using a celebrity's name or picture when running a TV or print ad without getting that celebrities or, frankly, any individual's consent before doing so.

But this illustrates the broader risk of the fast-moving nature of social media. That those in charge of your company's social media presence, they want to move quickly. They want to use the organic and fast-moving nature of social media to maximum benefit, but they don't always appreciate the risks, and they don't always take the time to seek legal advice. So here, there is a role for in-house and external counsel in addressing this risk through those policies or other training for those in charge of social media marketing so that they are aware of these risks. So they have guidelines for mitigating those risks and so that they to seek advice where appropriate.

Another example of where the use of social media marketing may create a risk of deceptive or misleading advertising is the use of astroturfing. So what is meant by this? Now, of course, customers often rely on online reviews, whether it's on social media or elsewhere on the internet, when making purchasing decisions. And it may be that marketing teams may be tempted to encourage employees of the organization to post positive reviews online, or they might even pay third parties to do so to effectively act as satisfied customers and post positive reviews about their experience with the product or brand. This is called astroturfing. It gets this name because it's not real grass. It's not real grassroots.

But from a legal perspective, it creates a significant risk of charges of misleading or deceptive advertising. And, in fact, this has been the subject of a consent settlement between the Canadian Competition Bureau and a major telecommunications company, where almost exactly this happened. Certain employees were encouraged to post positive reviews and ratings of mobile apps without disclosing that they were employees of the company that was making the apps available. So now, to its credit, when the company became aware of what had taken place, it immediately took steps to have the reviews and ratings removed, and it fully cooperated with the Competition Bureau.

But nonetheless, it ultimately entered into a consent agreement with the Bureau under which it agreed to enhance its compliance program to prohibit this kind of astroturfing activity, and it also agreed to pay a $1.25 million penalty, which demonstrates the magnitude of the risks even where this kind of conduct is inadvertent and unknown to senior management of the organization. Now, one of the advantages of social media that I mentioned earlier was the ability to have a dialogue with customers. And indeed, this is something that customers really like is allows them to have a conversation effectively in real-time with the company or the brand.

And again, this contrasts with the one-way nature of traditional advertising. And sometimes, customers with issues they can receive answers to questions or have their issues dealt with faster than if they go through a more conventional customer service channel, such as the telephone. But your company needs to remember that these conversations that are playing out on social media, this engagement that is happening on social media is happening in public. It's visible in most cases to others.

Now, this is not necessarily a negative thing in and of itself. This can be helpful from a branding customer relationship perspective because sometimes, a discussion with one customer about an issue will be helpful to other customers as well. And it also helps to show just how engaged the brand is with its customers.

But at the same time, it creates a legal risk, a violation of privacy laws to the extent of that conversation, and the company side of that conversation is disclosing personal information about the customer without the customer's consent. So here the way to address this risk is to ensure that social media managers are aware of the risk that there are policies and training in place to know when it's appropriate to take a dialogue, a conversation with a customer offline into private, avoiding the public discussions that create the risk of an inadvertent disclosure of private information.

Now, social media, of course, is about enhancing the brand, and an important part of any brand are the trademarks associated with it. And unfortunately, social media, in a way, enhances the ability of others to misuse trademarks or otherwise affect the goodwill the companies have built-in their brands. And, of course, companies, particularly in the social media world, have to be careful to protect their brands and trademarks because of the risk that if they do not, they may lose the legal rights that they have in their trademarks and the goodwill that they have in their brands.

So examples could be companies using-- other companies rather using your logos or trademarks in their own advertising on social media. It could be social media users registering account names or creating pages that incorporate your trademarks. And added to this increased opportunity for your trademarks to be misused or infringed upon is that enforcement is difficult because sometimes it's very difficult to identify who is the person behind the misuse or infringement because they're either operating anonymously or they're operating under some sort of pseudonym, and finding out their true identity can be a challenge that may require legal action of its own.

Now here, there are many social media platforms do have their own appropriate use policies, and they have processes for stopping the infringement of intellectual property rights, including but not limited to trademarks. So here, there are avenues independent of legal action that can be used to assist in the protection of your company's trademarks. So again, here the need here is for in-house counsel to be cognizant of these risks and the potential enhancement of these risks in the social media sphere, but also to be aware of the available remedies, which extend beyond potential litigation for the purposes of protecting trademarks and brands.

Now, part of the engagement that is part of social media means giving customers a platform to communicate their views publicly. Now hopefully, and indeed, for the most part, customers are responsible in the use of that platform. And to the extent they're using your brand's page or website to post, comments, or other feedback, they're doing so in a responsible manner. But the risk here is that individuals can use the social media presence maintained by your company to post defamatory, abusive, private, confidential, or copyrighted content.

And as the operator of that forum, as a maintainer of that page, the risk here is that your company may become liable for republishing that content. And that risk may be enhanced if your company is taking an active role in moderating the content, is making decisions about what content is appropriate and what is not. And taking it down because this tends to demonstrate that you are in control of the page or the website or other social media presence.

Of course, at the same time, taking down anything from your social media presence creates the more reputational risk of accusations of engaging in censorship. So now the issues here are complex. They're going to depend on the nature of the content and the applicable legal regime. But at a high level, in-house counsel should be aware of, again, the need to have policies around the moderation of a social media presence if there is, in fact, to be any moderation at all, and to set clear parameters around what is or what is not appropriate use, and then to ensure that those policies are being complied with by the individuals responsible for maintaining the social media presence.

Now, another risk is essentially the flip side of this, which arises when someone else posts defamatory, abusive, private, confidential, or copyrighted content pertaining to your company or posted somewhere else on some other on a social media site or on another website. And this may, for example, create obligations to your employees if, for example, their personal information is being posted publicly. If you're not legally obligated to take action, it may be in your interests to do so to have the content taken down.

That, of course, is tricky, again, in large part to the anonymity of the internet and the ability of individuals to post this kind of content on sites while remaining anonymous. And asking the site that is hosting this content to take it down may make them concerned about their risks if they start engaging in moderation of content, just as you may very well be concerned about moderating content on your own social media presence. And then, of course, layered on top of this is whether you should do anything at all, at least if you're not legally obligated to do so.

And to illustrate this point, we have a case study involving a law firm that was quite upset to receive a negative review on a review site and actually took the step of suing for defamation over this negative review. Now ultimately, the poster, whoever it was, didn't defend the claim. And so the law firm proceeded in default and went to a hearing, where the judge treated the allegations as being admitted, and the question was the level of damages that should be assessed in favor of the law firm.

And here this illustrates precisely why sometimes it isn't advisable to pursue your legal rights, even if you have a claim because the court was quite unimpressed with the claim that had been brought, actually saying, in my view, this action should never have been brought in awarding a mere $1 in nominal damages to the law firm. And this illustrates precisely why a response that is too heavy-handed is often inadvisable.

So now, we've talked about many of the risks, and there are others, and Sonya and Sven are going to talk about some of the other risks and considerations associated with social media. I am going to talk briefly about the issue of taking legal action with any issue arising from a social media risk. And the kinds of questions that deal with, as in-house counsel, should have in mind, but for advising the company on whether or not to proceed.

And again, first, one of the things to consider is whether you need to go to court at all. Often people leap to the conclusion that going to court is their only remedy. There are other options. One of which is to do nothing, but also another option is to consider using the appropriate use procedures and policies that are referred to others that are maintained by major social media platforms.

Now, of course, if you are going to sue, you have to figure out whether or not you can identify the person that you're going to take action against. And sometimes, this is a very difficult question as I've alluded to, and it may require preliminary legal proceedings just to identify the person that is going to be the target of the litigation, which is necessarily going to increase the complexity, the time, and the cost associated with legal action.

But beyond that, you have to consider how is legal action going to affect the perception of your organization. Are you going to look like a bully? Are you going to look like you're too sensitive? Are you going to simply attract more attention to whatever it is on social media that you're concerned with?

Just to illustrate this. Often demand letters that are sent to individuals who have posted content on social media or otherwise on the internet are posted by the recipients. They take the demand letter, post it online, and frame themselves as being bullied or threatened by a big company or brand. In doing so, risk simply attracting more attention to whatever it is that this person said or did that prompted the letter. So often, taking action can make the problem worse.

Now, there are ways to address this. If one is to settle-- if you are going to send a letter, it's important to consider the language and the tone of that letter, anticipating, perhaps assuming that it's going to be posted online. And sometimes companies have been created and written demand letters that don't follow the typical aggressive legal demand pattern, and perhaps empathize with the recipient or take a joking tone with the recipient, something that is going to take the sting out of the letter if it is posted online.

I also need to consider whether there's any need to or how much need there is to detail the specifics of the allegations, again, because the letter might itself become public and may itself be circulated. Putting too much detail in the letter risks spreading whatever it was that was a problem that prompted the letter in the first place. Another consideration, of course, is where to the extent there is so-called anti-SLAPP legislation in place. So this is an acronym referring to Strategic Lawsuits Against Public Participation lawsuit.

This is legislation that is intended to prevent parties from using lawsuits, whether it's defamation lawsuits or otherwise, from shutting down public debate. And these statutes in the jurisdictions where they exist can make it very difficult to bring lawsuits where there is an argument that commentary, be it on social media or otherwise, relates to a matter of public debate. So again, very much need to consider the merits of litigation and the potential for an anti-SLAPP defense to be raised before deciding whether or not to take any sort of legal action.

And, as we've noted, leaving aside the existence of such legislation, the courts, in general, are not particularly sympathetic to overly sensitive companies, not simply overly sensitive law firms, and so even though you may be able to bring litigation, you should be asking the question of whether or not you should. So ultimately, addressing social media risk is going to require an approach that is not purely legal. It will necessarily require the advice of legal counsel so that the business has the full picture of the issues and the potential options available to them. And this is a theme that my colleague, Sonya and Sven, are going to be returning to. So I'm going to pass things over to Sonya as she talks about social media crises involving public allegations of wrongdoing.

SONYA PAVICH: Thanks, Evan. So it may be that your company finds itself in the unfortunate situation of being on the other end of litigation or potential litigation. And which is another risk that we have seen emerge in recent years. And that's really the use of social media as a mechanism to make public complaints about wrongdoing. The public allegations of misconduct can be against the company, more generally its culture, senior executives, or specific employees. And the allegations can range anywhere from financial misconduct, sexual harassment, racism, or other forms of misconduct.

We've seen examples in the news of executives being accused of serious wrongdoing online and the colossal effects that they can have on both the individual's reputation and also the companies. And so, when we look at the types of allegations that are made and spread on social media about companies, a trend emerges that it really often goes to the culture or values of the company. So even though the allegations may start with one issue or a specific complaint, they are often broadened to be about, for example, the whole company lacking diversity, being culturally insensitive, or having the type of culture where sexual harassment can take place.

There's also often a domino effect in social media, where one public allegation of a specific incident leads to hundreds or thousands of comments or other people coming forward and making similar allegations. And so, this contributes to the broadening effect of a particular complaint that's made. The public nature of the allegations and the speed at which the online discussion moves really expedites the timeline for the company in responding to it and increases some of the risks, which we'll talk about.

So to give broad examples of the potential risks. They include lawsuits against the company, which can include regulatory action, individual lawsuits, or class actions. And there's also risks relating to PR crises or HR issues. And the two I'll talk about in particular is the heightened risk of regulatory proceedings and class actions.

In regulatory matters, companies dealing with this type of allegation don't have the luxury of an internal whistleblower complaint, where they can conduct an internal confidential investigation, assess whether they need to report, and then do remediation to deal with any issues internally in the company. Instead, in the case of a public allegation, regardless of the merit of the claim, it can bring-- the public nature of the allegation can bring regulators knocking on the door, who feel they have an obligation to investigate depending, of course, on the seriousness of the conduct.

There's also a heightened risk that class action. There's also heightened risk of class actions because of the ability for the complaint to be seen by a large number of people who can then come forward. This type of grassroots crowdsourcing of other people who feel aggrieved is a unique feature of the social media era. Perhaps, the best examples of these risks is demonstrated by the MeToo-related allegations in the last year. We all the MeeToo hashtag went viral on Twitter last year and then spread to other social media platforms.

And a useful case study to look at just as an example is the first major company crises in the MeToo movement, which was the Weinstein Company and Harvey Weinstein, which began last year. So to illustrate the fast nature of this type of crisis, we'll just quickly go through the timeline of what happened.

On October 5th, 2017, the New York Times published an article claiming that film producer, Harvey Weinstein, had paid off sexual harassment accusers for decades. And as a side note, many other high-profile cases of sexual assault have come out in news and going back decades. But what made this situation unique? Well, it's what happened immediately after the news article. There was a social media storm that followed and really an immediate social media reaction. Only a few hours after the Times published its report, Weinstein issued an apology, and people began taking sides, including celebrities, some going so far as to defend him and others going on the other side.

In the following days, there was a plethora of news articles, online articles, and social media storms about the issue. On October 8, which is only three days after, there was an announcement that Harvey Weinstein was fired from the Weinstein Company, which is the company he co-founded. And then, two days later, on October 10th, there was an announcement by Weinstein's personal PR consultant that any allegations of noncontact sexual sex are unequivocally denied by Mr. Weinstein.

Five days later, on October 5th, an actress, Alyssa Milano, used the #MeToo, and urged victims of sexual abuse to share their stories on Twitter. And this is seen as the 2017 beginning of the MeToo hashtag. There was a ripple effect for minutes, hours after that post in October 15, where first dozens, and then hundreds and thousands of people began commenting and reports about Weinstein allegations, not just about Harvey Weinstein, but also against countless other celebrities people in the media industry. Mostly the entertainment industry, but also against politicians as well in those early days.

It broadened, and this is where we see the ripple effect of social media broadening, where at the beginning, it was focused on the entertainment industry but then began to broaden to other industries as well. And recently, I read a report that the MeToo hashtag has been used more than 19 million times on Twitter from the date of that October 15th tweet to September of this year. So, in an less than one year, 19 million users of the tweet.

So if your company finds itself in this type of crisis or another social media risk that starts to emerge into a crisis, it's really important to consider the role of legal in that, as well as PR. And one of the early decisions that in-house counsel will need to make is whether to retain external counsel. This will depend on a number of factors, including the seriousness of the issue, whether certain expertise is required that isn't available in-house, privilege considerations, and the level of risk overall.

If external counsel is retained, they can assist with deciding whether it would be appropriate to engage a PR consultant. And because of the intersection of reputational and legal risks in social media, the coordination of legal and PR is very important. There are cases where a PR consultant will be retained proactively before a crisis erupts, and this is the ideal situation in anticipation of an issue where you can prepare a readiness plan with a PR consultant. They can help assess the risk and draft possible communications or press releases for different scenarios.

But then there are other scenarios where that's not possible. The issue is unforeseen, and so a PR consultant may be engaged in reaction to a social media crisis. And in either case, it's important to ensure that the manner in which the PR consultant is retained and the communications that take place with legal are protected by privilege.

So one example or one best practice is the retainer letter that's used for the PR consultant should have clear confidentiality provisions and a protocol for communications that really articulate that the PR person is an advisor that is assisting with a provision of legal advice or in providing advice and anticipation of potential litigation. If the PR consultant is going to be working with legal, that is, it's very important to protect privilege in those scenarios.

It's also important to define at the outset the roles of legal counsel and PR so that the strategy that is undertaken is a coordinated front. And again, the importance of coordination between PR and legal cannot be overstated. This can be a tricky relationship because there may be situations where the legal risks and the reputational risks seem conflicting or like they're on two different tracks. For instance, there are cases where legal things that a certain approach is the most prudent legal course. But it would have negative PR implications, and so there can be a dance here between legal and PR finding the optimum strategy.

The way to navigate this relationship is with continuous communication and the recognition that PR and legal are complementary roles, and the solution is really towards developing a strategy that manages both the legal and reputational risks effectively. And so, we've put here on the slide some of the main tasks or roles of PR, and obviously developing a clear PR and communication strategy is one of the primary roles of PR and really where they're well-suited assessing the reputational risk both proactive or reactive.

Also, PR can be very helpful in assisting with communications with the complainant if there are going to be any communications and with other stakeholders, and in fact, developing a communication plan is at the outset is advisable. As well, PR is instrumental in drafting a press release along with consulting with legal and advising on the response strategy and messaging. Some of those roles overlap or are quite complementary to the legal counsel role. But legal counsel, of course, its primary role in a crisis is to advise on the legal risks, any regulatory matters, disclosure issues, contractual obligations, or other legal issues that arise.

And legal is also well-placed to coordinate among the various consultants, including with PR, and to coordinate the overall strategic advice, really the big picture strategy. Legal counsel is also important in ensuring that privilege is maintained because of the dual hat that in-house counsel plays in its business and the correspondence it may have within the business, it's more difficult to maintain privilege in certain situations because it really only be the communications that relate to the provision of legal advice. And this is where external counsel can be quite helpful when you do have, for example, a privileged investigation or a privileged response strategy. Having external counsel involved will protect the confidentiality of those communications and documents.

Legal counsel can also be quite helpful in reviewing the policies and procedures if that is part of the crisis plan or response plan. Also, it may be appropriate to conduct an investigation. We've talked about public allegations of wrongdoing, and it may be that when a public allegation is made on social media that's quite serious and the company has never looked at the issue that it would be appropriate to conduct an internal investigation to see whether the allegations have any merit. And external legal counsel is well placed to run that kind of investigation, and some in-house consultees as well are quite well-equipped to do that.

Legal counsel should also be involved in developing the communications and response strategy, as well as in developing a remediation plan, which may include, for example, updating policies, recommending disciplinary measures, or training or coaching employees and executives if necessary, which segues quite nicely, I think, into Sven's part of this webinar. So I'll turn it over to you, Sven.

SVEN POYSA: Thanks, Sonya. We've heard a lot thus far about the unique nature of social media risks, as well as the various steps companies can take to mitigate crises from social media. And much of the discussion thus far has been external, looking how social media is used to either create or amplify a crisis. And as an employment lawyer, I'm going to focus more on internal considerations for the legal department and the multitude of ways in which social media interacts with the employment relationship and workplace laws.

I've set out in the slide a few of those ways, whether it's corporate social media use and issues there that arise in terms of branding and ownership, who owns a particular tweet or social media message, particularly when you're dealing with outside influencers as Evan discussed. Personal social media use the situations in which the company can and should discipline employees for social media use while at the same time considering freedom of speech issues and censorship.

Increasingly, we're seeing social media as an alternative means of background checks in addition to the more traditional means. People often check up on potential new hires through their social media presence and the various issues that arise from doing so. Obviously, social media and company equipment employees using social media to access Facebook, for example, during work hours, social media and employee privacy, a very hot topic, and as both Evan and Sonya, mentioned social media and confidential or proprietary information. Lots of areas in which social media intersects with the workplace and workplace laws.

And so, what's the solution, or how do you deal with these various ways in which social media intersects with the employment relationship? The answer is to develop a detailed and thoughtful, and tailored social media policy. Unlike a harassment or workplace violence policy, which is often a one-size-fits-all. Thou shalt not harass. Thou shall not engage in workplace violence. Social media policies need to be tailored to the company's particular situation, their risk profile, their activities, and they perform, and the nature of the business.

And what kind of considerations go into tailoring a thoughtful social media policy? Well, at the outset, defining what you mean by social media and the permissive and non-permitted uses of social media is extremely important. Many different people have claimed to coin the term social media, and it's never entirely clear what it means or in what context. So, in order for a policy to be effective, you need to be clear about what you're talking about. Obviously, social networking sites are social media, but the uses of social networking sites might differ.

LinkedIn, for example, is something that a lot of employers encourage their employees to use, whereas Facebook is a much more personal social networking site. Video and photo-sharing sites raise their own issues, as Evan has talked about, particularly when dealing with influencers. Log, weblogs. So whether it's a corporate blog or a personal blog can have lots of intersections with the workplace and things that are posted on there.

We've seen Evan talk about examples when it comes to reviews and astroturfing and how even the Competition Bureau can get involved in that respect. And messaging sites, whether it's forums or discussion boards or Whatsapp and WeChat. Increasingly, we know that employees use these to communicate with each other both personally and about workplace issues. And on the one hand, it enhances and simplifies in many ways communication, allowing employees to work more effective and efficiently. And on the other hand, you have corporate information and documentation and sensitive information being used on platforms and servers not controlled by the company.

So there's a lot of consideration that needs to go into simply identifying the first place what you mean by social media. Additional considerations for drafting a careful and thoughtful social media policy. At a fundamental level, distinguishing between corporate use and personal use will drill down on this a little later, but obviously, corporate use is often individuals who are dedicated with individual accounts, but who is entitled to use it?

Who is entitled to speak on behalf of the corporation in public-facing social media posts? And in what context? What authorities or permissions need to be obtained? And contrast that with personal social media use, where is it appropriate for an employer to draw the line in terms of personal social media use, both in the workplace and outside of the workplace, because there are situations where employers do have a legitimate business interest in regulating employee social media use, even outside of working hours.

Another important point in drafting effective and tailored social media policy is to ensure that it works with your other workplace policies. And I've said this many times to clients, the only thing worse than not having a social media policy in place is having a policy that contradicts your other policies because, in those situations, the policy is really worth the paper it's written on. So most sophisticated businesses at this point would have a code of business conduct or an integrity and compliance policies setting out certain ethical standards of behavior. You'll want to make sure that your social media policy works with this policy as well.

Confidential information or data privacy policies and agreements are increasingly common, particularly in jurisdictions that have private-sector privacy legislation. So in consent-based regimes, you want to ensure that your social media policy, again, works hand in glove with those policies. Obviously, IT and computer use policy. It wouldn't make any sense to have a social media policy that prohibits outright any personal use of social media while having an IT or computer use policy that does allow employees to use their computers and IT during breaks, for example.

So external communications and media policies, who's entitled to speak on behalf of the company? How are complaints handled? That's something that should be addressed as well in the social media policy and more obvious policies, such as handheld device policies or workplace violence and discrimination policies. Those also need to work with your social media policy.

So once you've turned your mind to the various considerations that go into drafting a proper policy and the framework, you'll want to focus on the, obviously, the content, as with any workplace policy, the who is an important question. Define the scope and applicability. Many of our clients with cross-border operations prefer the fewer policies, the better to judge, but there are differences in the legal regimes in Canada and the US. That means a one-size-fits-all policy is not necessarily going to be appropriate.

Other important points to bear in mind when considering the scope and the content of your social media policy is when you are talking about non-business use, how are you going to ensure that not only it makes sense from a corporate and legal risk perspective, but in practice? How are you going to enforce the policy? If it's widely known that employees regularly use social media throughout the day in the workplace, having a policy that prohibits social media in the workplace isn't going to be something that a company can rely upon if it doesn't take steps to enforce it. If management knows the policy and allows employees to act in blatant violation of it, then the policy itself won't be something the company can rely on if it seeks to take action against employees. So ensure that you develop a policy that's common sense and enforceable in real life.

Another important point, obviously, is going to be a consistency of enforcement. As with any workplace policy, a policy that is not enforced consistently that demonstrates favoritism is highly problematic, whether it's the risk of discrimination or reprisal complaints or something is more fundamental as employee unhappiness leading to, as we know, unionization is one of the number one results of inconsistent management actions. So ensure that there is enforcement and ensure that there's consistent enforcement.

And how are you going to define limitations? When you're dealing with something as nebulous as social media policies, how much is too much is going to be an important line to draw and one that will have to be carefully drawn by companies based on their own specific circumstances? Additional considerations for the content of your social media policy, obviously, the legal framework in which you're operating, the protection of freedom of speech, and the risks associated with censorship. Evan raised the examples of companies that moderate comments on their social media pages and the host of issues that raises.

From a labor and employment perspective, there are labor law considerations and the right to associate that gets triggered in terms of any prohibitions on employees being critical about terms and conditions of employment can raise problems under labor laws, which grant protections to employees to associate and to unionize in respective terms and conditions of employment. Workplace harassment laws is another example one that's not up on the slides but is an extremely important example is overtime laws and hours of work laws.

If an employer encourages its employees to use social media, particularly for business purposes outside of regular business hours, is the employer thereby encouraging or condoning work outside of business hours. And as the employee, even if a salaried employee eligible for overtime under the applicable regime because as our listeners, no doubt, know the exemptions from overtime are narrowly interpreted in all jurisdictions across Canada.

Further considerations for social media policies being very explicit painfully explicit in terms of employee's expectations of privacy, essentially, depending on your company equipment and IT policy. Most company's position at this point is that employees have no reasonable expectation of privacy, and the want to say that explicitly and the monitoring. You'll want to be explicit in what, if any, monitoring the company does, whether proactively or after incidents in respect of company equipment, including on social media.

The meat of any social media policy is often setting out the permitted as well as an especially the prohibited conduct when it comes to social media. Some of it is very easy to define when you're talking about, for example, intellectual property laws, unauthorized use of IP, violation of other company's IP, unauthorized disclosure of confidential or proprietary information. That's easy. That's going to be prohibited.

Other commonplace prohibitions in social media policies include using company assets, computers for outsized business purposes or posting viewing linking, et cetera, using social media in respect of inappropriate materials, whether it's profane, defamatory, harassing, et cetera. Trickier areas but where many employers struggle are the extent to which, if any, you'll want to regulate or provide even guidelines relating to more sensitive areas such as politics, religion, and morality. And we've seen a variety of approaches from a variety of different businesses on these areas.

Now, drilling down a little bit into the various types of use. And when you're defining your social media policy, even within the business use, there's going to be internal business use. What is appropriate social media use? Are you allowed to use WhatsApp for internal communications and external business use? What is the corporate presence on social media? Who's entitled to speak on behalf of the company? And what context? And what approvals are required?

There are a number of cases out there where there are disputes over the ownership of a post or tweet, or an image. A paid influencer is producing content for a company in the absence of a clear agreement as to who owns that content. It's obvious that there is the potential for dispute. So legal departments are well served by ensuring that their policies as well as their agreements under these policies clearly address issues such as the ownership and the approvals required.

Other important topics. How is this going to be used and stored? Passwords. How are you going to ensure that if something happens to a key social account, you'll be in a position to maintain the presence if you've got password protections and other things in place? And obviously, training. Increasingly, we know that companies encourage social media use by their employees, but there's a way to do it properly. And the training on the proper use of social media, particularly external-facing social media, is extremely important.

When it comes to the other side of the coin, the inside social media use, and sorry, the personal social media use. The key question for employers is the extent to which, if any, they wish to regulate off-duty conduct. Obviously, there's going to be during working hours some prohibited users some limitations on the use of social media in the workplace. What about outside of the workplace?

On the one hand, employers generally don't have a legitimate business interest in regulating off-duty conduct. On the other hand, what is said outside of working hours on social media can absolutely expand and explode and affect the business, and there is a potential for a real nexus to the workplace, and legitimate company interests can be engaged, more or less, depending on the nature of the business. So that is area that's rife with disputes and needs to be handled carefully.

Profiles. Particularly profiles for very prominent faces of the organization. What, if any, disclaimers are you going to require that the contents of social media for them personally and not the views of the business? What, if any, prohibitions are you going to have or requirements or caveats if any employees make reference to the company, its products, its services, our employees on social media, and general guidelines in terms of the responsible use of social media, whether at the company or on personal time? These are all considerations that in-house legal counsel will want to work with closely from the business and the marketing side as well to understand we want to maximize the potential of social media and ensure it is used to our benefit as an organization while at the same time minimizing the risks.

Last point on social media policies. As in all policies, again, they're worth the paper they're written on from an enforcement perspective if you can't prove that the employee has been made aware of and agreed to be bound by the policies. For new hires, that's a relatively easy process. Most organizations sophisticated organizations have an onboarding process where they make employees aware of their policies. Cross-referencing policies, not necessarily social media specifically, but a general obligation to comply with policies and the employment contract is always a good thing. But specific sharing of policies as part of the onboarding process and signed backs, very important.

For existing employees, there needs to be a rollout, particularly if you don't have a social media policy or if you're doing a significant refresh and update of your social media policy. How to ensure that existing employees are aware of and have an opportunity to ask questions in respect of, and then finally, are bound by those policies is important, and that's done through an efficient rollout and a tailored process. Obviously, policies if you rolled it out three years ago are not going to be top of mind. So it's going to be important to educate the employees on the use of social media, how to bring it to their attention, whether through training sessions or postings in the workplace.

The more often-- the greater principle provides, the more often you bring it to their attention, the more likely they are to comply with it. And organizations at this point know that it's a good idea to have at least an annual refresh and sign-off by employees of their important policies. And I would very much argue that, for many organizations, social media policy should be one of those.

And as a former high school teacher, I do feel compelled to note that the more effective the training, the more likely the compliance, and so social media is really an area in which there are real-life examples that can really hammer home the importance of complying with the policy. So use real-life events and case studies for training purposes to ensure that the impact of noncompliance is brought home to the employees.

So, in the end, social media, as you've heard, is increasingly pervasive and important. Companies need to keep up with it, and a good starting place, at least from the workplace and internal perspective, is a thoughtful social media policy that's tailored to the company's particular business. Of course, would be happy to assist any businesses in doing so to ensure that the policy in place that helps maximize social media potential while minimizing the legal risks. Evan.

EVAN BARRS: All right. Thank you very much to our presenters. We already have a couple of questions rolling in. The first question is going to be for Sonya. It's relates to engage in counsel to respond to social media crises. Specifically, when do you recommend that legal counsel be engaged to assist with developing a response to a social media crisis? And is there a tipping point when legal counsel should be engaged?

SONYA PAVICH: That's a great question. And I wish there was a simple answer to that, but it's kind of a multifactor answer. So I think internally, in-house counsel should be engaged as early as possible to assess the potential legal risks and to determine at the outset whether this is an issue that legal should be involved in. When it comes to deciding whether to retain external counsel, again, it will really depend on the fact and the level of risk and expertise involved.

So generally, some guideposts are that it would be advisable to retain external counsel in high-risk matters. So this is where there's a significant litigation risk. If the issue involves senior executives or allegations about the company culture, that would be high-risk matters or regulatory issues. And other scenarios where retaining external counsel would be very useful is if an internal investigation needs to be conducted if substantive policies need to be revisited. If a company, for example, doesn't have a social media policy and has significant social media exposure, external counsel can help with that.

Also, if the situation calls for specific social media or employment law or risk expertise that the in-house counsel team either doesn't feel like they have, or they just don't feel particularly comfortable with, external counsel can be used for their expertise. So I think a good litmus test is if it seems like there may be some material risk and you are unsure, then retain external counsel to get advice. This really is a situation where it pays to be proactive.

EVAN BARRS: Thanks very much. That's very helpful. In the interest of time, we're going to respond to the other questions that have been posed offline. But on behalf of Sven, Sonya, and Evan, thank you very much for joining us for this webinar. We hope it has given you some useful insights. Make sure you join us for the remainder of the webinars in the series. More details will be posted on osler.com in the near future. Thank you again for attending this webinar, and have a lovely day.

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