Google Plus Raises New Liability Questions

By Joshua Kubicki

Facebook, Twitter and LinkedIn have become powerful marketing tools, allowing companies to engage with millions of potential clients or customers. But as the boundaries between personal and professional interaction blur, the question of “personal privacy” vs. “company policy” is inevitably encountered.

Google Plus is a site that has already reached more than 25 million users sharing over one billion items a day “by invitation only.” The Google Plus “circle” system promises to complicate matters even more. By allowing users to create circles of friends, separating work colleagues from personal friends or family, Google Plus is inviting users to share more than they would on other social networks.

For company executives and general counsel, the perceived privacy of this arrangement could create a hazard. Employees, for example, might be more comfortable sharing private information with their friends, knowing their colleagues won’t see the picture or post. But that information becomes part of the body of discoverable data in the event of a lawsuit. Employees may think they are only posting to specific circles on Google Plus, to only their friends on Facebook, or protecting their tweets on Twitter, but in the fine print of Terms of Service, users are not ensured a right to privacy for anything posted on a third-party, semi-public, “free” social media platform.

As more case law develops around social media, user privacy will likely diminish even further. Social media platform providers will be forced to hand data over to the courts, bringing millions of posts into the public eye.

There is currently little legal precedent for social media cases, with most settled out of court. But with its increasing popularity, it is only a matter of time before social media data will be a primary focus, if not the direct cause, of corporate legal disputes. When this occurs, all corporate social media data – and possibly that of employees as well – will need to be turned over. As the mountain of searchable and discoverable data grows, the cost to pull that data can become staggering.

According to some recent estimates, internet users send a staggering 13,800,000 messages, 5,700,000 status updates and 30,000,000 comments every hour. Without some compelling reason why this data should be privileged, it all becomes part of an ever-growing body of potential evidence. According to Gartner research, by the end of 2013, more than half of all companies will be asked to produce this evidence in litigation.

Of course, you don’t want to completely limit your employees’ access to social media. Doing so would create a huge missed opportunity in terms of business promotion and networking. So how can your company find the right balance between participating in social media and self-preservation?

The first step is to discuss the situation with key stakeholders and settle on a well-defined social media policy. Depending upon the size and nature of your organization, you will need to determine what type of policy is best suited for your employees. “Closed” policies tightly restrict employee access to social media through site blocks, but often miss an opportunity to allow their employees to engage with the public or their peers positively. Free access, on the other hand, often creates huge liability traps.

The best social media policy is worthless if the employees don’t understand and abide by it. Take the time to train employees on your policy, the platforms in question, and on their appropriate use. Usage policies may vary by department – with marketing, for example, having a more open policy than administration. But overall, training should encompass a theme that ties it back to the company’s social media policy and goals.

Because social media sites and habits change frequently, training should be updated and re-administered frequently. When a new platform like Google Plus enters the arena, update the policy and address any changes with employees immediately.

Finally, devise a strategy to collect, monitor and preserve social media evidence to comply with applicable laws and regulations. Astonishingly, while social media is included in the rules of legal discovery, very few companies collect and retain social media data created by employees on behalf of the brand. This can be dangerous. It is much cheaper to have that data ready than it is to scramble after a request is made by the courts.

As Google Plus grows to join the social media elite, have a plan ready to handle another deluge of potentially discoverable data. Preparing both your company and your employees is the best way to ensure you are in compliance if a legal dispute occurs. It can save you time, money and headaches. ■

Joshua Kubicki is Senior Director for Legal & Corporate Practices at Applied Discovery, a division of LexisNexis. He is a lawyer licensed in the District of Columbia and an expert in legal project management, legal services unbundling and the overall integration of business and technology with legal practice and process.

joshua.kubicki@applieddiscovery.com