NorthBay biz takes a ride down the slippery slope of using social media and online networking while at work—for good, for bad and for downright ugly.

Eighteen- to 34-year-olds “now spend 4.3 times more time on social media than with TV, radio, newspapers, magazines and books combined,” according to wordtracker.com, a blog written by social media marketing specialist Lyndon Antcliff. The social media phenomenon is sometimes called Web 2.0, not because of an upgrade in software—the usual reason for such a numerical label—but because it indicates a different way to use the Internet. Instead of one author speaking to many readers, the new paradigm is many readers/writers speaking to each other.

A few definitions may be in order. Blogs, Twitter, Facebook and LinkedIn are all social media networks. There are many others, such as StumbleUpon, Delicious and Digg, as well as various email message boards. Each has its own characteristics that can be useful for marketing.

• Blogs. The word “blog” comes from “web log.” A blog is a kind of online diary, with new entries added at the top. Readers’ comments are invited and become available to the blog’s readers.

• Twitter. Entries on Twitter, called “tweets,” are limited to 140 characters, including punctuation. This makes them ideal for communicating through phones and hand-held devices. Users can read each other’s tweets and can “retweet.”

• Facebook. Antcliff says Facebook is the biggest social site, with more than 250 million users. Comments written on Facebook can be viewed by other users who have been accepted as “friends.” They can sometimes also be read by the friends’ friends, allowing rapid (viral) spread of images and ideas.

• LinkedIn. Similar to Facebook but more serious, LinkedIn is a site devoted to professional networking.

Since use of social media is relatively new, legal ramifications are still being worked out. Can an employee be fired for blogging at work—or during off-duty hours? What if the blog is critical of the company or its customers? What if it releases sensitive information to the public? How can an employer protect the business from damage through social media?

What could go wrong?

If employees engage in social networking at the office, using company hardware or even their own equipment during company time, it can create a host of problems—starting with loss of attention to business.

As NorthBay biz legal columnist Brandon R. Blevans wrote in the March 2009 issue [“Be Careful What You Click For”], “The most obvious problem for employers is simple: productivity. Employees do what I do every day—check their accounts, check up on their friends and engage in online applications. And, with some sites, it’s no longer enough to block them with your high-tech firewall because they’ve gone mobile. Move over old-fashioned texting, there’s something meatier out there. That’s right: Your employees get alerts sent right to their cell phones and can use that iPhone you paid for to fulfill their social (or socially anti-social) tendencies.”

It could be worse. Whether employees choose to blog or tweet at the office or on their own time, they might cause problems for their employer by making comments that defame the company or its clients. They could discriminate against or harass coworkers. They could release confidential information.

The case of the unruly intern

One North Bay example of such poor online judgment is an intern at Santa Rosa’s Exchange Bank a couple of years ago, who used a company email address to create an unauthorized Facebook profile for the bank. He linked the newly created bank profile to his personal profile, which included photos of scantily clad young women as well as photos of the intern that were apparently taken after a night of drinking.

The experience led the bank to reexamine its policies. Craig Van Selow, executive vice president of retail banking for Exchange Bank, says the company now has a stringent policy regarding use of its resources. “Like many firms, we view our resources to be company property, for work use only,” he says. “The bank’s name, symbols, marks, logos (sometimes referred to as ‘indicia’), products and all of our intellectual property can’t be used without our permission. For obvious reasons, people—both within and outside the organization—can’t use our name in support of a cause without specific permission.”

The case of the craigslist critic

In another example, derogatory comments about Korbel Champagne Cellars appeared last year on craigslist forum, a message board associated with the popular craigslist, a network of online communities and classified ads. The anonymous comments accused Korbel of retaliating against employees who reported sexual harassment and of plotting to cut down ancient redwoods on its property. In an attempt to stop the postings, Korbel sued the anonymous critic for defamation, saying the comments were demonstrably false and damaging to the company’s reputation.

A judge ordered Comcast, the Internet service provider, to reveal the source. Prior to providing the identity, however, Comcast was given an opportunity to notify its customer so they would have an opportunity to object to having their identity revealed. The customer did object, but the court overruled the objections and it was revealed in court that the comments came from the Internet account of Richie Ann Samii, daughter of Korbel owner Gary Heck. Korbel is now suing Samii for defamation in a suit that’s been portrayed by some as an attack on free speech on the Internet.

Terry Fahn, a Korbel spokesperson, says the accusations made on craigslist were “absolutely false.” Further, he says, “Korbel respects and values the free speech rights guaranteed by the United States Constitution. In this instance, however, because statements repeatedly made on craigslist were false, defamatory and potentially damaging, the company felt compelled to take action.”

Welcome to the wild west

Newspapers have particular issues with social media. Scott Henry, online director at the Marin Independent Journal (IJ) in Novato, says the newspaper lets the public post comments at the end of online stories (they’re not visible until a reader selects “view comments”). It also has freelance writers who represent it online, as well as staff members who publish articles and opinions.

“All the rules are changing,” he says. “It’s impossible for anyone to say with authority where it will end up. We apply the same standards to everything we publish, but it’s like trying to catch Niagara Falls in a teacup.” The newspaper has set up basic guidelines, saying its writers should remain professional in their conduct, but, says Henry, with those who aren’t employees or contracted freelancers, it’s “virtually impossible to enforce.”

He says the biggest issue is the comments on stories. “They can go anywhere. It’s the wild west.” Comments are often derogatory or hurtful, but, says Henry, “If we stop the comments, it could be more damaging. We’d be taking away [the readers’] legitimate voice.”

He cites the example of a story about a traffic accident. The newspaper didn’t release the driver’s name because he was a minor, but online commentators speculated on his identity and made mean-spirited, hurtful comments based on conjecture and innuendo, Henry says. In another story about a spousal assault, the comments turned into conjecture about whether the suspect was an illegal immigrant.

“I don’t think anyone anticipated this kind of rage out there,” he says. The IJ doesn’t actively moderate the comments, though offensive language is filtered, readers can report abuse and, if things get too bad, it simply turns them off. But, Henry adds, just because the comments are no longer visible on the IJ website doesn’t mean they can’t be found by determined Internet searchers.

“It was so easy 20 years ago,” Henry says. “The issue of libel used to be clear. It’s not that way any more. The question is, are we a publisher online or a common carrier like Comcast, Earthlink or AOL?” Carriers aren’t held responsible for what their subscribers post, he says. Newspapers find themselves in the middle.

“If we set up the right guidelines for behavior, that mitigates a lot. Everyone is wrestling with that, not just publishers.” You want that website traffic—that interest—he says, but you never have enough staff to moderate all the information.

Fired for blogging

A few years ago, a disgruntled Kaiser employee posted private patient information that she said was available on Kaiser’s website. Kaiser asked the Internet provider to remove the information and informed its patients about the breach. Recently, a realty company sued a Chicago woman for $50,000 for tweeting about an allegedly moldy apartment.

These examples show that businesses can’t ignore social media but must monitor the Internet and be ready to react to statements that may impact them.

The basic rule for employers, says Jay Luther, a San Anselmo employment attorney, is that an employer can fire somebody for on- or off-the-job conduct, unless that conduct is otherwise protected. “As long as you have an employee at-will, that employee can be fired for any reason or no reason. If the employee believes he was unfairly discharged, a lawyer will try to find a law that protects him. We have lots of laws protecting employees today, so very often, the lawyer’s efforts will be successful.” Protected conduct includes political activities, serving on a jury, union organizing and other activities related to conditions of employment.

Blogger and journalist Curt Hopkins went looking for statistics on people who were fired for blogging; he couldn’t find any, so he began gathering every instance he could find. He displays them on his own blog, Morpheme Tales (morphemetales.wordpress.com). As of July 2009, the list included 77 bloggers. Only two were from Northern California. Hopkins says he initially compiled the list using different search engines; after he started it, many people contacted him with their stories.

“It’s more anecdotal than anything else, it’s not a statistical sampling that would satisfy a math professor,” Hopkins says. That’s because most employers don’t say they fired someone for blogging. “Saying ‘no one ever got fired for blogging’ is like, when a worker gets fired after having been overheard complaining about his boss, saying ‘no one ever got fired for talking.’” He says he tried asking human resources people about some of the first cases on his list, but they say they can’t talk about it. However, Hopkins says he’s spoken with several people who were, in fact, fired for blogging. His list also includes seven who say they were disciplined but not fired, and two who weren’t hired because of their blogs—including Hopkins himself.

The word “morpheme” means the smallest linguistic unit that can deliver meaning. Hopkins, who currently lives in Oregon, says he chose the name Morpheme Tales because it offered him the opportunity to write anything he wanted at any time, “any piece of meaning I want.” Hopkins’ recent posts range from poetry to politics to reprinting the Declaration of Independence. He says that in about 2005, he was in the running for an editorial position with Minnesota  Public Radio, but when they discovered his blog, they didn’t hire him. “I was baffled this could happen,” he says. “It’s odd that someone who depends on speech being free wouldn’t hire someone because they exemplify freedom of speech.”

How businesses can protect themselves

Employers may choose to establish specific employee guidelines to address blogging and social media, or they can simply adopt a broad policy requiring employees to act professionally—in a way that doesn’t harm the company’s reputation—at all times.

“Companies need to develop a policy for their employees as they did when engaging in email practice,” says Carolyn Goodman, president and creative director of Goodman Marketing Partners in San Rafael. “Employees need to think twice before blogging or tweeting. It’s easy to dash out something quick, not being mindful of whom you address.”

Part of the employment agreement is usually that employees won’t use company email for personal purposes or make personal phone calls, Goodman notes, and this needs to expand to tweets and blogs and Facebook posts.

Blevans agrees that the rules ought to be communicated. “If you know your employees are on these sites, it may be a good idea to communicate your expectations regarding content and online behavior. Communication of those expectations, coupled with judicious, thoughtful use, can make social networks a useful tool for a company while minimizing the pain and distraction that could otherwise result from their use,” he writes.

Currently, there’s very little Internet law on anonymous speech, says Luther, and what we have is in conflict. The First Amendment applies to the Internet, but exactly what speech is protected is far from clear. “One of these days, there may be some clarifying legislation directed to online conduct, just as we have various reporters’ shield laws to protect anonymous sources,” he says. “The balance that the courts and the legislatures have to work out is between free speech on one hand and irresponsible conduct on the other.”

As Internet issues work through the legal system, businesses need to find ways to take advantage of the positive exposure social networks and blogging can offer, while minimizing possible negative effects. They can do this by establishing clear and comprehensive rules for employees regarding use of these media and by monitoring the Internet for applicable comments. Savvy businesses can “go viral” with positive comments, while defusing the negative with speedy responses. In extreme cases, they may find themselves suing for defamation—one of the cases that will ultimately help clarify Internet law.

Using Social Media to Grow Your Business

“Companies have to monitor keywords on Twitter and have a strategy in place covering what to do when they see a pertinent comment,” she says. She suggests using a blog to publicize new products and services, combined with using Twitter to direct customers to the blog. “Twitter is an amazing tool, to have fun and to direct interest to a new release of products. Then use traditional direct marketing to tie them together.”

She cites an example in which a traditional direct mail piece “went viral” through social media. The mailing, including a link to a website, was so eye-catching that a member of the audience to whom it was sent scanned it and posted it to their blog. Then they tweeted, directing people to the blog. The company itself retweeted. Between tweets and retweets, word quickly spread.

Alex Kahl, a web designer and owner of Kahl Consultants, a San Rafael web services consulting company, routinely advises his clients to include a blog as part of their websites. “My biggest difficulty is convincing small business owners to blog. Search engines tend to rank you much higher if you use a blog. That’s because if you add content to your blog on a regular basis, the search engines consider your site more valuable than one that’s less dynamic,” he says.

If they suffer from fear of blogging, Kahl suggests clients remember that a business-related blog need not be exclusively about their business. For instance, “it could be about what’s going on in Marin, or about a customer’s business,” he suggests. A blog entry doesn’t have to be long; Twitter’s popularity shows that short messages can get results.

Nor should businesses be afraid of their lack of control over public comment. Kahl feels that comments should be encouraged. “It increases the community aspect of a website. In my eyes, if you’re a small business, it’s to your advantage. You’re also getting something for nothing, with your visitors adding valuable content to your site. It helps with your search engine ranking and creates a sense of community.”

Social Media Policy Tips

By Brenda Gilchrist