No one questions the prevalence and increasing reliance on social media from a corporate perspective. Earlier this year, PR firm Burson-Marsteller released a study of 100 of the top Fortune 500 companies and found that upwards of 75% of the companies use blogs, YouTube, Facebook or Twitter to communicate with their clients or stakeholders. Personal use of social media sites continues to rise as well, with the Pew Internet & American Life Project finding social networking use by users 18-24 at 86%, while use by users 50-64 at a surprising 42%. Along with this increased use come rising concerns of privacy issues on social media sites. One has to look no further than two of the Internet’s behemoths, Facebook and Google, to understand the privacy risks associated with social media.
Now, U.S. Courts are beginning to weigh in on social media, potentially highlighting a new privacy concern. In September, a New York court considered a discovery request by the defendant for the current and historical content of the plaintiff’s Facebook and MySpace profile. The court found that despite the plaintiff’s privacy concerns, the defendant’s need for access to the information contained in the profile outweighed that privacy right. In doing so, the court found an analogy for posting material to a social media site, even one restricting access, to a Second Circuit case where the appeals court found that individuals have no expectation of privacy for e-mails.
For corporations, there is the potential for this kind of finding to extend to social media accounts accessed by employees while at work. A 2010 Trend Micro study found that social media use in the workplace has risen from 19% to 24% in the past two years, and it is not hard to predict that number will continue trending up. For companies seeking to protect themselves from this discovery risk, a corporate Acceptable Use Policy (AUP) should be implemented either prohibiting social media use in the workplace or outlining very specific and acceptable uses of these sites while at work. Factors such as company size, technological capability, and corporate culture should be considered when developing an effective AUP. Experienced counsel should be able to help in the design and implementation of an effective AUP, which would mitigate some social media risks.