Many organizations are not aware of their regulatory obligations to retain social media, but this can result in serious problems. While the focus of social media management and control is today skewed heavily toward financial services, there is growing expansion into other heavily regulated industries, as well.
Archiving is an essential component of social media control and management for the simple reason that, from a legal or regulatory perspective, electronic content in a Facebook post or tweet is fundamentally no different than email or other electronic content. For example:
- In Armstrong v. Shirvell, the defendant requested “[a] complete copy of all communications between you and the following individuals… whether it be on Facebook, in a blog, via e-mail, text message, voicemail, letter, facsimile, or anywhere else…”
- In Calvert v. Red Robin International, Inc., the plaintiff ordered by the court to “bring all materials, electronic or otherwise, including e-mails, Facebook messages, and any other communications he has had with putative class members in this action”.
- FINRA Regulatory Notice 10-06 states that “Every firm that intends to communicate, or permit its associated persons to communicate, through social media sites must first ensure that it can retain records of those communications as required by Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934 and NASD Rule 3110.”
- In addition to Notice 10-06, there are a number of other financial services-focused regulatory obligations, including FINRA Notice 11-39, NASD 2310 and FINRA Rule 2210(c)(6). In addition, the SEC offered advice in a January 2012 National Examination Risk Alert about how investment advisers should use social media.
- In early 2014, the US Food and Drug Administration issued guidelines for the use of social media in advertising and marketing by pharmaceutical companies. These guidelines focus on a wide range of social media, including blogs, social networks, live podcasts and other platforms.
- The Government of Queensland (Australia) has published its opinion that “Public authorities that embrace social media must manage the content created in accordance with the recordkeeping requirements of the Public Records Act 2002, Information Standard 40: Recordkeeping and Information Standard 31: Retention and Disposal of Public Records.”
Although relatively few organizations archive corporate-sponsored social media content like Facebook posts or tweets, and even fewer archive employees’ personal social media posts, there are some use cases to consider, as in the following examples:
- If an employee is terminated for an offensive post he or she made on her non-work-related social media page, the employer must be prepared to defend its actions. A case in point is that of Lindsey Stone who was terminated because of a photo she posted on Facebook mocking the Tomb of the Unknown Soldier at Arlington National Cemetery. An archive of social media content used to make a termination decision – if it can be produced in context and authenticated – may prove valuable in helping an organization to justify it decision if the decision is ever challenged in a legal action.
- A 2012 survey by CareerBuilder found that almost 40% of hiring managers use prospective employees’ social media posts to evaluate them, and many reject applicants based on their discovery of objectionable content in those posts. However, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against prospective employees based on their race, color, religion, sex, pregnancy or national origin. If a hiring manager evaluates prospects’ social media posts that might include references to their national origin or their participation in a gender-based organization, how will he or she prove that this “off-limits” information was not taken into account if the employer is accused of failing to hire someone because of this information? If the organization has a process that a) has someone outside of the HR department cull information from the social media stream that cannot legally be evaluated, b) presents only this data to HR, and then c) archives this content, it will be better able to defend itself against charges of illegal hiring practices because it can demonstrate, through its archived content, that HR managers evaluated only legally relevant information. Archiving probably will not insulate the organization completely from charges of illegal hiring practices, but it will allow it to present evidence that it is complying with the law.
The bottom line is that even if an organization does not have a specific regulatory or other obligation to retain social media content today, it should seriously consider doing so as a means of protecting the organization and managing the risk it faces from the growing use of social media, both official and unofficial.