Social media like Facebook and Twitter are becoming more and more commonplace. Employers live in fear of a disgruntled ex-employee making anonymous posts on websites or chatrooms disparaging the company or its products. But what about the converse, the employee who is a bit too enthusiastic in touting his employer? The ubiquitous nature of social media presents ample opportunity for an employee’s work-related conduct to appear in an electronic forum. Are there dangers that employers must address in controlling the employee’s conduct in those forums?
Late last year, the Federal Trade Commission issued reformulated guidelines designed to protect consumers from deceptive endorsements and testimonials in advertising. The new guidelines extend to endorsements made on what the FTC refers to as the “new media”, including blogs, Wiki’s and social networking sites such as LinkedIn, Facebook and the like. Under these guidelines the FTC rules define an “endorsement” as “any advertising message. . .that consumers are likely to believe reflects the opinions, beliefs, findings or experiences of a party other than the sponsoring advertiser.” Such endorsements may render an employer subject to liability for false or unsubstantiated statements, or for failing to disclose material connections between itself and the endorser. Indeed, if an employee’s on-line statements on his or her blog or other social media site relates to the employer’s products or services and do not disclose the employment relationship, the employer may be held liable for false or unsubstantiated statements, even though the employee’s comments are not authorized or known by the employer. The “rah rah” employee that raves about the company’s products or services on his blog may unwittingly expose the employer to liability for violation of the FTC guidelines.
There may be a safe harbor, however. The FTC comments indicate that although they have brought several enforcement actions, no such actions had been initiated when a single employee acted contrary to established company policy. To take advantage of this safe harbor, an employer should establish a new company policy or revise existing policies to put its employees on notice of the need to use care in social media activities.
If you would like help in establishing such policies or with other employment law issues, please contact TBL at 480-483-9600.
