What started off as a digital means of staying in touch with friends has grown into a mainstream and effective method of developing and maintaining business relationships. Today, most businesses and business people are connected through social media in some way. The proper use of social media can provide unlimited opportunities for architects, lighting designers, and design firms to generate exposure, find new leads and potential clients, and connect with existing customers.
But despite the vast opportunities that social media provides for making connections and promoting your work, it is not without its own set of challenges. The prolific use of social media in business has spawned an entirely new category of legal risks, and we’ll cover some of the most prevalent ones here. The laws are developing very rapidly, and you’re going to need to review them regularly.
What is Social Media?
In short, the term “social media” describes any digital tool that creates and fosters interaction and discussion between people and businesses. You’re well familiar with some of the most common social media forums, such as Facebook, Twitter, YouTube, LinkedIn, Google+, and Tumblr. The beauty of this form of communication is that you can reach large numbers of people immediately and inexpensively. For example, when a designer tweets about a new project, the message is immediately distributed, at no cost, to all of the businesses and individuals who follow him.
And it doesn’t matter how big your company is, or where you’re located. From sole practitioners to global firms, design businesses have embraced social media as a way of promoting their work, their employees, and their activities. The medium is quickly replacing traditional forms of advertising as the preferred means of attracting new business. Instead of spending thousands of dollars on producing a television commercial and paying for time to air it on a cable or satellite station, business owners are creating their own videos and publishing them for free on sites like YouTube or directly on their company’s website.
But the very reasons that everyone loves social media are also the reasons that they dislike it. For one thing, social media is immediate, meaning that what you send out reaches everyone who follows you instantly. Once it’s out, there is no way to really take it back, even if you delete the post in the first few seconds after launch. There have been a number of instances where companies and organizations have to engage in damage control after an employee makes an inappropriate post. One of the better known examples was in 2011, when an American Red Cross staff member posted a tweet suggesting that they were drinking while on the job. The organization quickly posted a humorous tweet and the individual tweeted their regret, but this example does demonstrate the importance of maintaining separation between corporate and personal social media accounts. Additionally, it points out the importance of maintaining a professional voice, even if a corporate account is managed by more than one individual. Failure to properly maintain the privacy of a corporate social media account can have devastating effects on your business.
Another example of the dangers of improper use of social media was American Apparel’s social media marketing campaign during Hurricane Sandy. The company offered coupons for online shopping “in case you’re bored during the storm.” It should go without saying that social media campaigns that are poorly worded and come across as insensitive or in poor taste can do more harm than good.
Social Media and Employee Screening
As of today a number of states—including New Jersey, California, Illinois, Maryland, Michigan, and Delaware—have enacted laws that make it illegal for an employer or a hiring agent to request a job applicant’s social media login information. While it may seem like common sense, prior to the enactment of these laws, some employers in these states were making the production of login information mandatory. Many states will likely pass similar laws over the next 12 months.
An employer can learn a great deal about a potential employee from their online Facebook or Twitter presence than they might during a traditional face-to-face interview. So is it illegal for an employer to Google an applicant or search Facebook for an employee? No. While it is illegal in some states and frowned upon in others to require login information, it is not illegal to conduct a regular Internet search for applicants or employees. Often, people fail to maintain adequate privacy settings and so a “snooping” employer may find photos or posts that provide greater insight into a person’s character and lifestyle. But it is not illegal to look at public information.
It is illegal, however, to refuse to hire or to terminate an employee for any discriminatory reason. So, if an employer were to learn through public social media posts that an employee is pregnant or is a recovering alcoholic, it would be illegal for that employer to refuse to hire or to terminate the employment of that person.
Keep this in mind: Traditional labor laws apply to employee and applicants despite rapidly developing technologies and changes in communication formats. Social media background checks, like traditional checks, are subject to the Fair Credit Reporting Act, a federal law that protects the privacy of a consumer’s credit report.
Online Endorsements and Testimonials
These days, clients are spending more of their time looking for design resources online, so quality client testimonials can be the deciding factor in the decision to hire one designer over another. Online endorsements can also have the added benefit of improving your search rankings, which in turn should lead to more Web traffic. Nevertheless, you need to be mindful of who and what you endorse and who endorses you.
Don’t be tempted to fudge a fake testimonial, no matter how difficult you may find it to ask a client for a written testimonial. The Federal Trade Commission (FTC) has written a guide concerning the use of testimonials in advertising. According to the FTC, all endorsements must be truthful and not misleading; there must be a disclaimer concerning generally expected results from using their products or services; and disclosure of any connection between the endorser and the business displaying the testimonial is required. These guidelines cover any advertising messages on any social media site. And the FTC regularly investigates claims of false testimonials and endorsements and is quick to assess penalties and fines. In 2011, a Tennessee company called Legacy Learning Systems and its owner were each fined $250,000 for paying people to provide online reviews and endorsements.
Contests and Sweepstakes
Online contests, sweepstakes, and other offerings can be a great way to drive traffic to your website and expand your client base. Due to the potential liabilities associated with such promotions, however, designers should consult an attorney before launching any promotion.
As one example of the pitfalls with running a competition, offering a chance to win a free prize in exchange for liking your Facebook page could be considered an illegal lottery under certain state laws. This may sound outlandish, but it is a serious matter requiring legal guidance—or at least a good understanding of your state’s contest laws.
Designers running online promotions have to be aware that their campaign is not only subject to the laws of each of the 50 states but also to the laws of every country in which their website appears. Therefore, it is important that any online promotion is limited in scope to a particular jurisdiction. For example, you should include a statement that your promotion is limited to your particular location, state, or country. Promotions are a very complicated legal field: There are many legal and quasi-legal areas that a designer can handle on his or her own, such as setting up a corporation or LLC, but it is never a good idea to launch a promotional online marketing offering without first consulting with an attorney.
Social Media Policies
Finally, it is important for design firms and designers who have anyone working with them to have a social media policy, as it can help protect a designer’s reputation and business. In addition to minimizing your liability, the policy can serve as a guideline for proper internal promotion, and it can help your employees to better understand how to promote the company online.
This policy does not need to be extensive. The key is to clearly state the prohibited activities and suggestions for the proper use of social sites. It is also important to understand state and federal laws when drafting it. For example, all social media policies should include a statement that the company does not prohibit employees from discussing the terms and conditions of their employment, including any criticism, so long as the online comments discuss the terms and conditions instead of just disparaging comments. Such a statement is important because the National Labor Relations Board has ruled numerous times in the past year that it is unlawful for an employer to terminate an employee for criticizing their working conditions on Facebook or elsewhere.
Another issue to address in your policy is the disclosure of confidential information. Recently, a design firm was bidding on a massive international construction project. The firm sent one of its top designers to Boston for a confidential meeting. Prior to the meeting, the company that was requesting the bids had made each bidder sign a strict confidentiality and nondisclosure agreement. On the train up to Boston, the designer tweeted that he was on his way to pitch his office to a large pharmaceutical company looking for lighting designers. The organization learned of the tweet prior to the designer’s arrival, and they told him and his firm that they were no longer interested in entertaining bids from them.
If this firm had had a social media policy in place, the designer might have realized that confidential information should never be referenced in social media posts, regardless of how harmless it might seem. Such a policy might have prevented the loss of a major project and the business associated with it.
The integration of business and social media is here to stay. From issues surrounding privacy and security of information to etiquette and professionalism, designers must learn to manage it properly. Social media platforms can be a tremendous benefit when used correctly and a devastating and costly loss when not.
The immediacy of information that now exists in society presents a great opportunity—and a great stumbling block if not used appropriately. Etiquette and professionalism all still apply online, but the informality of these types of exchanges often lead people to forget that the rules of courtesy apply. Correct online behavior is an issue that schools are addressing through a concept called Digital Citizenship. While this is meant as a guide for students, as well as parents and teachers—particularly of elementary school-age children who are coming of age in this new digital world—the nine themes of digital citizenship below that make up “the norms of appropriate, responsible technology use” are something that all of us could stand to benefit from: 1. Digital Access: Full electronic participation in society
2. Digital Commerce: Electronic buying and selling of goods
3. Digital Communication: Electronic exchange of information
4. Digital Literacy: Process of teaching and teaching about technology and the use of technology
5. Digital Etiquette: Electronic standards of conduct or procedure
6. Digital Law: Electronic responsibility for actions and deeds
7. Digital Rights and Responsibilities: Those freedoms extended to everyone in a digital world
8. Digital Health and Wellness: Physical and psychological well-being in a digital technology world
9. Digital Security (Self-Protection): Electronic precautions to guarantee safety.
For more on Digital Citizenship go to digitalcitizenship.net.