Another entry in the ever-increasing list of articles discussing the pitfalls that social media presents when it comes to trade secrets and confidential information. Rebecca Edelson (Steptoe & Johnson) hits all of the typical points in an article over at Law.com (and does so in a nice bulleted fashion). But in typical lawyer fashion, it feels like overkill. And remember, this is coming from a lawyer.
She strongly urges employers to consider prohibiting employees from using social media for business purposes “unless they have obtained the express approval of a designated person who has been educated as to what to consider before granting approval.”
Accordingly, businesses may reasonably ban employee use of social media in order to reduce the risk that an employee’s comments or statements will come back to haunt them (as defamation, misstatement, etc.).
The advice Ms. Edelson provides is helpful in that it gets you thinking. But like I said, I think it might be overkill, keeping in mind that I’m a social media guy and Ms. Edelson is a guru when it comes to trade secrets and trade secret litigation (seriously — she has a treatise).
Here is where I think her article starts to stray. The issues of trade secrets and confidentiality can and should be addressed with an effective and appropriate social media policy, which applies to all employees. Indeed, employers should have a general social media policy, not a policy targeted at controlling or preventing the dissemination of confidential information. While many of Ms. Edelson’s suggestions (go read them if you haven’t) would be wisely implemented into such a policy, in approaching social media from an employer’s standpoint, I think it is a better practice to think broadly about the medium and its effects rather than crafting narrow policies that focus on specific issues, such trade secrets and privacy (admittedly, the article is probably written specifically to target in and trade secrets and privacy and therefore I really shouldn’t be pointing out what I think may be flaws).
A corollary point, another a point that Ms. Edelson would know much more about than I, is that if you are worried about particular employees tweeting out or posting up certain confidential information, why do those employees have access to that information in the first place? Now, don’t get me wrong. I understand that it is entirely impractical to build the firewall that I seem to be suggesting. You cannot run a business without allowing some confidential and proprietary information out into the ether where employees exists (customer lists, pricing info, etc.). This is why I spend so much time drafting Confidentiality, Non-Compete, and Non-Disclosure Agreements. But, at the heart of the matter, those trade secrets that are really (really) important, the ones that make or break you and your company, well, the people in possession of those should know better than to disclose them, which, of course, they don’t.
Original Article: People Will Talk: Protecting Trade Secrets in the World of Social Media
