Social Media Posts: What do you do with a "bad" post?

Businesses that are considering using social media often spend an inordinate amount of time worrying about what can go wrong.  From the disgruntled customer, to the misguided employee, to the inarticulate spokesperson, there are indeed many things that can go "wrong" when using social media, however, the mere possibility that something could go wrong does not mean your company should go running for the exits. 

In truth, things can go "wrong" in almost any area of your business and the mere fact that it occurs on social media has little to do with the media itself.  When an employee goes AWOL and posts inappropriate or unflattering content, it has been said that "you don't have a social media problem, you have a hiring problem." Similarly, staying off of social media due to concerns that a customer may say something unflattering is really akin to stating that your business is unwilling to address complaints.  (Thanks to Amber Naslund and Jay Baer authors of The Now Revolution, and a TWISML Hat tip preview). In reality, these issues are human resource and customer service problems which every business must address in one form or another.  Social media just serves to magnify the problems.

An interesting area where these issues find an interplay with the law is what you do with "bad" posts once they are out there.  While at first, it may seem reflexive to delete the post (if you are able), in many instances it might not be that simple.

A recent tragic case arising out of a dorm room incident at Rutgers University has brought about some potentially significant developments in this area of social media law.  The case out of Rutgers arose when Dharun Ravi allegedly videoed his roommate Tyler Clementi's relationship with another student via webcam and distributed a link to that webcam via social media.  After Clementi learned that his relationship had been broadcast he tragically took his own life.  Charges were initially brought against Mr. Ravi alleging counts related to invasion of privacy.  While these facts are tragic, what is particularly interesting when considering the application to social media law is that Ravi was also recently charged with tampering with evidence.  (For a more detailed account of the incident, see article by Beth DeFalco  of the AP Roommate charged with hate crime in N.J. Suicide).

While on its face, this case may seem unrelated to a business' use of social media, the tampering with evidence charges may provide a window into future developments.  As with the evidence in this criminal case, a business that knows civil litigation is likely to arise has a duty to refrain from destroying relevant evidence. While, initially, it may seem perfectly reasonable for a business to delete offensive posts, or remove client complaints, this duty to preserve evidence makes it advisable to consider whether the post potentially relates to a larger legal issue.

Although these evidentiary considerations present potential problems, they do not mean that troublesome posts must be left up indefinitely.  Even though the law directly relating to this kind of material is in many respects still being written, a business can provide itself with an added layer or protection through the use of a properly crafted social media policy.  Addressing how your business will deal with this sort of material, setting up procedures on how to retain/store relevant posts, training employees on how to deal with these issues, and taking proper measures to ensure that you do not run afoul of the evidence tampering laws are all fairly easy ways to protect your business. As with many other legal issues, proper planning on the front end can help minor legal problems from developing in to major legal disasters.

Let me know what you think.