Pubications > Drafting tips for social media policies

Care should be taken to ensure that Social Media Policies (SMP's) are not only legally binding on employees and contractors, but that they reflect the goals and practical aspirations for an organisations social media strategy.   Policy development should involve executives from Human Resources, Public Relations, Legal and "C" level executives. A boilerplate policy will simply not be effective.

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Depending on the degree of control that an organisation wishes to have over its employees and contractors then they can introduce:

	revised terms for employment contracts (where applicable);
	a Social Media Policy;
	or both.

 

Non-Social Media Policies

If your organisation "prohibits" employees participating in social networking at work, or allows an "open slather approach", you do not have an SMP. These two approaches are fraught with danger as they do not address the legal issues for the organisation and are not allowing the organisation to benefit from having its employees participate in social networking sites.

 

The extent of control required

The amount of control that the organisation wishes to have over the activities of its employees, is largely a human resources issue which has to be balanced with the legal risks associated with social networking for the organisation, the industry in which it operates and the laws that apply.

 

The legal environment

The key risks must be considered and addressed in the context of the legal framework that the organisation operates in. For example Telstra is a public company listed on the Australian Stock Exchange (ASX), therefore it has continuous disclosure obligations under the ASX Listing Rules and the Corporations Act 2001 (Cth) that the Powerhouse Museum does not – see links to sample policies below.

Similarly, Intel wanted to create chatter online about itself, therefore its policy is much more liberal . These industry characteristics and nuances must be considered otherwise an SMP may risk being ineffective.

 

Addressing intellectual property created after hours by employees

Organisations should also consider issues associated with ownership of intellectual property (IP) created by their employees both during and after hours. There is a potential risk that SMP's do not adequately address the creation of IP where individuals within organisations create significant followers online then change employers and take their social networking accounts with them.

 

Enforce the policy by using a monitoring service

If the policy is not enforced with the threat of sanction when it is breached, then it's unlikely that it will be effective.

 

False guidance from sample SMP's

The following SMP's can provide broad guidance:
Telstra - Social Media - Telstra’s 3 Rs of Social Media Engagement
IBM (USA)
Powerhouse Museum
Australian Public Service Commission – Interim protocols for online media participation

 

If policy drafters look to a sample policies for guidance, they should bear in mind that the fundamental principles underlying an SMP may not best serve the interests of the organisation.  This is because different organisations have different online strategies, operate in different legislative environments (and perhaps jurisdictions) and wish to have different levels of control over the activities of their employees online.

SMP's like all policies and contracts need to be individually drafted and tailored to the unique needs of the organisation. Without such individualised attention, the SMP may fail to protect an organisation in the future when it may need it the most.

 

 

Malcolm Burrows B.Bus.,MBA.,LL.B.,GDLP.,MQLS

Associate

 

"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Rostron Carlyle's legal practitioners who will consider their particular circumstances".

 

Related Legal Practices

 

Rostron Carlyle also has the following related speciality Practices that can assist organisations :

 

Technology and Software Development Law

Corporate Law Practice

Intellectual Property Practice

Defamation and Media Law Practice

 

 

 

Expertise in Social Media Law

 

Rostron Carlyle's Social Media Practice is one of the first of its kind in Australia. It has been building its expertise over most of 2009 and is now one of the few Practices with specialist expertise in this area.

 

If your organisation needs assistance to protect itself against the lurking perils of Social Networking, whilst getting the benefits, please contact us or follow us on Twitter @ITCorplaw.

 

You'll find that Rostron Carlyle is likely to have assisted someone to do exactly what it is that you are trying to do, but you’ll find that a Rostron Carlyle Lawyer can distill a complex legal issue into a set of actionable options for you to consider.

 

A Rostron Carlyle lawyer will be a person that you can relate to.  We'’ll talk your language. Most

importantly, a relationship with a Rostron Carlyle lawyer will be "a relationship you can rely on".