Submitted by: Paul Gagne, Of Counsel and Litigation Department member, Kleinbard LLC

Most businesses understand that social media – employed strategically and carefully – can be an invaluable tool for promoting a company and its brand. Most businesses also understand that there are many pitfalls inherent in the use of social media, but they may not be aware of exactly what those risks are. This article covers some of the intellectual property risks associated with promoting your business on social media sites.

  1. Have Clear Rules on Ownership of Social Media Accounts. When an employee creates or operates a social media account in the company’s name (for example, a branded company Twitter account), make certain that written policies or procedures provide clearly that the company owns the account, the content, and the followers.
  2. Keep an Eye on Freelancing Employees. Your employees may – with or without your knowledge and authorization – identify themselves as working for you on their personal websites. If you choose to allow this (and there may be good reasons to do so), make sure that you have clearly-articulated, written guidelines in place for what your employees are permitted to do and say. In particular, make sure that your employees are not disclosing your trade secrets, confidential marketing strategies or other information you need to keep out of the public eye.
  3. Back Up Your Intellectual Property! The Internet is forever, right? Everyone says so. Not so fast. Companies often post content to social media sites assuming that the content will be available forever. Make sure that you carefully review each site’s Terms and Conditions to make sure exactly what is being promised. Those terms may well provide that the site may shut down at any time, with or without notice to users, and with no obligation on the site’s part to back up, retain or return user content. If your content resides only on the site with no backup, your valuable intellectual property may be lost – forever.
  4. Make Sure Your Trade Secrets Stay Secret. Happy to have your knowledgeable employees out there on social media promoting your products or services? Great, but make sure they are bound by appropriate policies not to share confidential information or trade secrets such as formulas and know how, through social media accounts, whether the company’s official site or the employees’ private social media account. In addition to written procedures, make sure you educate your employees that the company’s secrets are just that – secret.
  5. Protect Your Brand When You Can. The unfortunate fact is that you cannot control the negative things that people – often taking advantage of the Internet’s cloak of anonymity – say about your company or of its products on social media sites. Develop a policy for how to monitor and react to negative social media postings. It won’t do your company – or its image – any good to chase after every Internet troll who criticizes your brand, but have a plan in place for when to take action, such as when truly damaging defamatory information or your trade secrets are posted for the online world to see.
  6. But Protect it Honestly. Companies are often tempted to buff their image by directing employees to pose as regular consumers and to post glowing reviews of the company’s goods or services on social media sites such as Yelp or Facebook, or on more traditional websites such