By Orla O'Hannaidh

Womble Carlyle Sandridge & Rice, LLP

A social media policy or a set of guidelines helps your employees make smarter decisions when marketing your brand, products and services online and may mitigate the risk of coming under the radar of the FTC or another regulatory agency or simply avoiding bad PR.

1. Key Players. Legal should play a key role in creating a social media policy or set of guidelines, but it is wise to involve personnel from marketing, IT, and HR. Also consider including representatives from a selection of departments to get valuable input from employees that the policy is intended to guide.

2. Identify and Evaluate. Before drafting a social media policy, the key players must carry out internal due diligence.

· Identify and evaluate the categories of confidential information that your employees have access to and may inadvertently share on social media.

· Identify and evaluate the type of content that employees post on social media platforms. Is the content generally created in-house? By an ad agency? From other third-party sources? Are social media campaigns usually text-only or do they include photos, music, videos, endorsements? Understand the legal issues associated with posting content online.

· Identify and evaluate other legal risks associated with the use of social media in your business, including third-party terms of use, employment laws, privacy claims, securities laws and other laws that may be triggered by the use of social media by employees. For example, the National Labor Relations Board has found overly restrictive social media policies to violate employees’ protected rights.

3. Purpose and Scope. The policy should reflect the type of social media engagement that your company and employees actually use. For example, does your company maintain a Facebook® page or a blog? Use LinkedIn® to post articles? Run promotions on Instagram®? Do your employees use personal social media accounts to post on behalf of the company or only employer-created accounts? The answers to these questions will affect the types of social media guidelines that you should create for your employees.

4. Be Practical, Positive and Consistent. The policy should be easy to read and interpret. The intent is not to discourage social media use, but to make use smarter. Try to phrase the guidelines as things employees “can” do rather than cannot do. Use terms that employees engaged in social media will understand. For example: avoid using terms from the Copyright Act such as “reproduce, distribute or display,” and instead use “post, tweet or pin.” The policy should also match the general values and culture of your company and the other policies that you may have in place that overlap with social media policies.

5. Training. Training is essential. Do not just add the policy to the employee handbook and hope that your employees will read it. Explain why social media guidelines are important to the company and the company’s reputation ad relationship with customers, vendors and other third parties. Explain the legal risks of “social media posts gone wrong.” Arrange a lunch and learn to walk through the policies and provide examples of “Dos and Don’ts.” Create a short checklist of key takeaways from the policy and post the checklist in areas where employees who regularly post on social media work.

6. Monitor and Re-visit. Monitor compliance and ensure enforcement is uniform. Social media changes quickly, so the policy should also be re-visited frequently to make sure that new forms of social media engagement are captured.

Orla O’Hannaidh is a technology and licensing attorney whose practice focuses on advising clients in intellectual property, advertising and transactional matters. She also is a member of Womble Carlyle’s Privacy and Data Protection Team.