Social Media Access May Cause Governance Problems

A Gartner report has warned that many organisations could fall foul of governance regulations through offering open access to social media sites like Facebook and Twitter.

Under governance regulations, companies could be called on to provide information stored on these sites under e-discovery requests. Pleas of privacy for these sites is no argument in court, it appears.

Keep Policies Simple

The Social Media Governance: An Ounce of Prevention report concludes that by the end of 2013 half of all companies will have been asked to produce material from social media sites for e-discovery.

Debra Logan, vice president and distinguished analyst at Gartner described the legal landscape around social media as a patchwork. This stems from overlapping, conflicting and contradictory laws and regulations, mixed with processes imposed by national and international legislative and regulatory bodies.

She pointed out that governance rules exist for certain vertical markets, such as the US Securities And Exchange Commission’s regulations for brokers/dealers (SEC Rule 17a-4), but for most markets there are no clear rulings. It is up to individual organisations to decide how to use and govern social media, she said, and pointed out that Gartner does not expect there to be clear guidance coming from the courts or regulators in the near future.

“Social media content is like all other content that is created by companies and individuals and is subject to the same rules, laws and customs,” said Logan. “Policymakers need to keep policies simple when it comes to what should and should not be done online. A good rule of thumb is that whatever the company code of conduct is for in-person encounters, and whatever the rules are for general good behaviour and common sense apply in the online world as well.”

E-discovery does not differentiate between social media and electronic, or even paper, artifacts. “The phrase to remember is ‘if it exists, it is discoverable’,” she wrote.

Logan said she has noted internally managed collaboration and social media content has started to come up frequently in e-discovery requests and, the more-integrated the system (for example, unified communications), the more likely one form of content will lead to the discovery of admissible evidence.

Does social media have a role in the enterprise?

Just as ignorance of the law is no protection against being prosecuted, the argument that personal social media content is private may not shield an individual, or company, from prosecution. Certainly not in the US as recent employer/employee conflicts have shown.

One such case ,where an employee claimed an injury received at work had caused “loss of enjoyment of life”, the employer’s legal team argued that public parts of her  Facebook and MySpace pages implied that the case could be disproved by the content of her private pages.

The court ruled that “The plaintiff’s right to privacy was outweighed by the defendant’s need for the information. As neither of the social networking sites guaranteed complete privacy, the plaintiff had no legitimate reasonable expectation of privacy.”

There is a danger that a site could be hacked and incriminating, but false, ‘evidence’ be placed there. This plea has not been tested in any court but Logan said that, in some cases, it may be appropriate to ban access to social media in the workplace.

On the corporate governance front, she warns that content that cannot be captured for archival purposes may be required by law and therefore should be avoided.

“The organisation must tell employees who are subject to the rules not to use the technology, even unofficially,” she said. “They could do so anyway, of course, because of the free availability of many consumer-grade social media sites, but doing so might violate the conditions of their employment or professional licensing resulting in the most-stringent of penalties, particularly in the case of lawyers, brokers, doctors and accountants.”

Gartner estimates that by the end of 2012, 50 percent of companies will attempt to block access to some or all social networking sites.