Social Networking: Setting Boundaries in a Borderless Brave New World

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  Social Networking: Setting Boundaries in a Borderless Brave New World  
  By Scott Blackmer, InformationLawGroup  

The explosive growth and morphing applications of social media such as Facebook and Twitter create new opportunities and challenges for individual users, parents, employers, organizations, governments and marketers. Where a social phenomenon has such a wide and unpredictable impact, it almost inevitably attracts a retinue of lawmakers and regulators, as well as lawyers and HR managers struggling to craft appropriate policies for employees. And given the globalization of social media, those policies have to take account of the evolving rules in multiple jurisdictions.

When I was a kid in Las Vegas, I had a “pen pal” in France. We exchanged the occasional letter, painfully translating into each other’s languages and then trying to figure out how much postage to stick on the envelope. It seems quaint now.

Thanks to Facebook, LinkedIn, and Twitter, I’ve enjoyed meeting people with similar interests and reconnecting with people I knew socially or professionally in years past, in several countries. It’s usually pretty easy to look up people as you think of them, and there’s no postage and little delay.

Those services, and an array of other social media, have become truly international. Some 15 percent of the world’s Internet users are American, so even successful social media operators in the U.S. naturally look abroad to expand their increasingly monetized networks. Competing with national and regional social networks throughout the world, leading social networking providers in the U.S., Europe, China, and India have turned social media into a global phenomenon. To take one prominent example, U.S.-based Facebook now translates into more than 100 languages and reported this month at, that nearly 70 percent of its hundreds of millions of users reside outside the United States.

Facebook aggregates users’ self-reported demographic data and sells the information to advertisers, who are understandably eager to tap the advertising possibilities of social media: in several developed countries, a third or more of the population uses Facebook, many on a daily basis.

Facebookers and other social networkers often end up sharing a large amount of personal and professional information over time with friends . . . and friends of friends, and friends of friends of friends, and, ultimately, with a lot of people they wouldn’t recognize across a restaurant. By some estimates, roughly a third of Facebook users ultimately divulge their home address and current employment to an unknown number of people who are perhaps not all really their friends. New York senator Charles Schumer recently called on the Federal Trade Commission (FTC) to develop guidelines for social networking sites, and the FTC has already had occasion to investigate the extent to which identity theft and fraud are attributable to bad hygiene, or bad policies, in social media.

Most of the social networking groups I belong to are professional ones, linking lawyers, business people, inventors, IT managers, academics, and government officials who share certain interests and follow developments in particular fields. Participants often share ideas and some personal and career information, and they sometimes comment about their own companies or organizations or the offerings of their competitors.

So, as a lawyer, it strikes me that some social networkers may be exposing themselves not only to embarrassment and unwanted solicitations but also to fraud or identity theft. They also may be setting themselves up for trouble with prospective employers, or with their current employers or business partners who feel the talkative social networker has violated confidentiality policies or nondisclosure agreements. Advertising thinly disguised as a Tweet or post may not conform to advertising rules in all the relevant states, provinces or countries. An intemperate rant or sly aside, broadcast to a few hundred of the user’s “closest friends” raises the potential of liability for defamation or commercial disparagement. Comments about associates or coworkers, especially in the context of social media that blur the lines between personal and professional life, may trigger sanctions under privacy and data protection laws. And thanks to the global nature of social media, the hapless social networker could conceivably run afoul of laws in multiple jurisdictions.

It’s not only the FTC that has started worrying about the dark side of social media. The Article 29 Data Protection Working Party (comprised of EU authorities and European national data protection commissioners) issued a statement this month,, declaring that Facebook’s new default privacy settings are dangerous. The group has also warned social media application developers (such as FarmVille) to be careful in their handling of user data. Regulators on both sides of the Atlantic have expressed concern as well about behavioral marketing applications based on gathering information about an individual’s participation in social media.

It’s easy to overreact to the hazards of social media, of course. Some parents forbid their children from joining in (and some teens have created a “safe” MySpace page that their parents can see, while secretly maintaining a more dubious version to share with their peers). Some users decide to drop out entirely, finding the risks, or just the implied obligation to post and respond frequently, unmanageable; there is even a “Quitting Facebook” community page on Facebook itself. Reasonably careful social networkers simply look at the privacy policies and options and adjust their settings appropriately to their intended use - and then watch what they say about employers, competitors, and other sensitive types. Some corporations have blocked access to social networking sites from company computers and adopted policies against their employees saying, well, pretty much anything about the company or its competitors or regulators. But other companies have already designated a “director of social media” to help the organization make effective use of social networking, internally and externally.

It seems that the trend is for employers to expand their “acceptable use” policies on e-mail and Web browsing to encompass blogging and social media as well. This is a necessary step, but it is also fraught with concerns arising from labor law, privacy law, and rights of association and free expression, and the rules differ across the many jurisdictions that may be at issue. It is possible to set some boundaries that will pass muster just about anywhere and articulate policies that guide employees toward safe and sensible use of social media. There is much to be learned in the way of evolving best practices, especially among large multinational employers. Just don’t forget to check with a knowledgeable lawyer when crafting such policies and determining how to enforce them.


About the Author
W. Scott Blackmer has practiced information technology law since 1982 and has been listed in several peer-reviewed directories of prominent IT lawyers, including the Legal Media Group's Guide to the World's Leading Technology, Media & Telecommunications Lawyers. He is a founding partner of InformationLawGroup and serves on the executive management team of the First Law International legal network (Brussels). He also consults on privacy, data protection, and security issues in association with HR Privacy Solutions (New York) and Jeitosa Group International (San Francisco). A frequent speaker and writer on IT law and information privacy and security issues, Blackmer has made presentations or taught seminars on these subjects at numerous industry and professional conferences and universities around the world. For more information, visit

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