The newest challenges in the digital world involve social media. The term social media can refer to any number of Internet-based applications used for interactive communication among users, such as YouTube, blogs, or Facebook.
Social media applications allow users to post content—such as text, video, and music—and then invite comment. Unlike static Web pages, social media sites are in a constant state of flux, as more and more comments shape the discussion. This makes it far more difficult to monitor content for libelous or other concerning material, assuming that a company had a right to read it at all.
On the plus side, companies can benefit from social media if they learn how to harness the marketing opportunities. One positive review about a restaurant, for example, can mushroom as friends of the commenter ask for details, share with other friends, and so on.
But negative news, valid or not, spreads just as quickly, as the pizza delivery company found out. Additionally, once information is posted on a social media site, it is virtually impossible to retrieve. So, for example, if a disgruntled employee posts negative comments about an employer, the company might be in a position to take action against the employee, but the negative commentary will live on forever as it is passed around the social media universe.
Companies should not assume that they can take immediate action against employees who post negative comments about them on social media sites. The courts will weigh many factors to assess corporate rights in each case.
The federal Stored Communications Act of 1986 and similar state laws protect electronic records that are in storage rather than in transit. Though the act predates social media by almost two decades, courts still look to it for guidance. Courts have ruled that messages stored on a person’s social media site that are not readily accessible to the public at large are in storage and, therefore, subject to certain privacy protections—including the right to safeguard the messages from compelled disclosure to an employer.
For example, in Pietrylo v. Hillstone Restaurant Group (U.S. District Court for the District of New Jersey, 2008) a restaurant employee created a forum on MySpace and invited several employees to join. The forum, accessible only to the invited employees, became a place where the employees could complain about their work. They also discussed several managers in an unflattering light.