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Te prolieration o social media in the workplace hasincreased the risk o potential liabilities or companies.Specically, there is a growing amount o litigation arisingout o the use o condential or proprietary inormationshared on social media websites. Employers have beenacing, and will continue to ace, a range o claims broughton by the use o social media in the workplace. Such claimsmay come in the orm o invasion o privacy, copyright andtrademark inringement, deamation, securities disclosure,advertising and consumer protection, harassment,discrimination, proessional negligence and a continuallyevolving list o other claims.

Employers need to be aware o potential condentialitybreaches by both current and ormer employees. In SasquaGroup, Inc. v. Lori Courtney, et al., Case No. 10CV00528(U.S.D.C. E.D.N.Y. 2010), a nancial services companysormer managing director, Lori Courtney (Courtney), lethe company to start her own nancial services rm. Severalo Sasquas clients moved their business to Courtneysnew rm. Sasqua then sought a temporary restrainingorder against Courtney, claiming that its trade secretsincluded client contacts, their individual proles, their

hiring preerences, their employment backgrounds, anddescriptions o previous interactions with client contacts.Courtney countered with the argument that almost allpotential clients in their industry have their inormationavailable on Bloomberg, LinkedIn, Facebook or otherpublicly available databases. Ultimately, the court adoptedthe Magistrates Recommendation that the inormationnot be aorded trade secret protection and that injunctiverelie be denied. Sasqua Group, Inc. v. Courtney, 2010 U.S.Dist. LEXIS 93442 (E.D.N.Y. Aug. 2, 2010).

Sasqua is an example o how the prolieration o inormationshared on social media sites can make it increasingly dicultor companies to maintain that sensitive inormation iseither proprietary or condential.

Another consideration regarding proprietary inormationis how to handle the inormation once it either intentionallyor inadvertently becomes public. In Katiroll Co., Inc.

v.Kati Roll and Platters, Inc., 2011 U.S. Dist. LEXIS 85212(D.N.J. Aug. 3, 2011), the court considered a trademarkinringement dispute between two restaurants. Duringlitigation, the deendant removed his Facebook prole,

which had included a photograph displaying the inringingtrade dress at issue. Plainti alleged that the evidence hadnot been properly preserved. Te court ultimately oundthat deendant had removed his Facebook pages at plainti srequest due to the inringement issues and, consequently,any spoliation o the evidence was unintentional. Tecourt ordered that the Facebook picture be publicly visibleagain or a short period o time in order or plainti toobtain whatever it needed. Consequently, even i a partyinadvertently posts condential inormation, there maybe legal ramications associated with the subsequentremoval o that inormation. I lawsuits are led, then

the condential inormation or the misrepresentation oproprietary inormation will receive unwanted exposureand attention, regardless o who prevails in the lawsuit.

Another concern arising out o the dissemination oproprietary inormation through social media wasillustrated in the recent case o PhoneDog v. Kravitz, CaseNo. C 11-03474 (N.D. Cal. 2011) in which a mobile newsand reviews company sued ormer employee Noah Kravitz(Kravitz) over who owned a witter account. Te witteraccount was started in association with PhoneDog, but was

then used by Kravitz as his own witter account. Tis raisesthe issue o who actually owns a social media account.Although the matter remains pending in the NorthernDistrict o Caliornia, the courts denial o Kravitzs motionto dismiss the trade secret claim highlights the possibilityo a orthcoming determination on a crucial question olaw in the evolving eld o social media claims.

Understandably, many employers are concerned thattheir employees will share proprietary inormationthrough social media sites and have established policiesprohibiting such conduct. In response to such policies, theNational Labor Relations Board (NLRB) maintains that acondentiality policy is illegal i it limits employees abilityto communicate with others regarding their workingconditions. According to the General Counsel o the NLRB,a social media policy that limits use o the companys namewithout prior approval o the law department is unlawul.(See Oce o the General Counsel, Report o the ActingGeneral Counsel Concerning Social Media, January 24,2012.)

*Tereore, under Section 7 o the National Labor Relations

Can There Be Condentialityin the Age of Social Media?

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Act, employees have the right to use a company name and logoon items such as electronic or paper leafets, cartoons or picketsigns as long as they are engaging in protected, concertedactivity.

On the other hand, one administrative law judge, in G4S SecureSolutions (USA) Inc., Case No. 28-CA- 23380 (March 29,2012), upheld an employer policy that prohibited placement

o photographs or videos o GS4 employees in uniorm orat the workplace on social networking sites without expresspermission. In supporting the employers action, the courtconcluded that the employer had a legitimate reason orrestricting the posting o pictures o its employees on socialmedia sites and that [t]o read it as a prohibition on Section7 activity strikes me as a stretch. In contrast, that very samecourt concluded that the employer could not restrict employeesrom using social media sites as a vehicle or commenting onwork related matters.

It is important or companies to proactively implementsocial media policies regarding condential and proprietaryinormation that will serve to protect their interests even urtherin this ever-changing environment. Such policies should becareully tailored to abide by the numerous laws and authoritiesthat are emerging in this area. Just having the appropriatesocial media policies is not enough companies need toappropriately communicate those policies to their employeesand train employees\ on compliance. Further, companies thatail to secure appropriate social media insurance coverage tosaeguard their interests will likely nd themselves perilouslyexposed in a world driven by this exploding area o liability.

Jessica Collier specializes ininternational and domestic crisismanagement, including productrecall and ood contamination issues.Jessica also ocuses her practice ontransportation, construction deect,employment, and proessional liabilitymatters.

Scott Sweeney ocuses on deendingemployers in employmentdiscrimination claims and representingsureties and insurance carriers in suretybond and bad aith litigation. Witha background in insurance coveragedisputes and general commercialmatters he has shared his litigation

experience with numerous insurance and surety claimshandlers and employers.