Avoiding Social Media Content Firestorms

What would you do if one of your newspaper reporters sent a tweet referring to the on-air talent of a local TV station as “stupid TV people”? What if you’d already counseled that reporter about the inappropriate nature of previous tweets he had posted using his company-related, company-affiliated Twitter account?

With the growing importance of second-screen applications, particularly those involving social TV, it’s very likely most of your news team is actively engaging in social media networking. However, as L. Michael Zinser, president of The Zinser Law Firm, points out, “Employee use of social media in the workplace is creating some novel legal issues and a few heavy-duty migraines for some managers.”

Zinser would know. His law firm has represented several media companies in matters where journalists had been fired for their use of social media or related content issues that their employers found to be unacceptable.

In an article entitled “Social Media Firestorms” in the May-June issue of MFM’s The Financial Manager (TFM) magazine, he provides some insights on the types of disputes that can arise between media businesses and their employees over social media. Fortunately he also has some suggestions for how to prevent these situations before they wind up in court or become fodder for competing news organizations.

The particular tweet referenced above generated a complaint from the TV station’s manager who said since the Twitter account was affiliated with the newspaper “a tweet like that becomes unprofessional.” The reporter’s employer agreed with that assessment and fired him.

Although the client’s newsroom is nonunion, the fired reporter filed an unfair labor practice charge at the National Labor Relations Board (NLRB) claiming he had engaged in a protected activity. The local office of the NLRB sent the case to its Division of Advice in Washington, which pondered the case for months before dismissing it.

Zinser said the case raised three main questions:

• Who owned the Twitter account?
• Is this a newspaper content issue?
• Is the First Amendment implicated?

“It is unquestionably a newspaper content issue. The employee was using the company business Twitter account,” Zinser says. He goes on to explain that under copyright law the newspaper owns the content that it publishes, regardless of the medium used.

Zinser was also involved in a case that did go to court, and which he feels will have bearing on future social media challenges involving the intersection of the First Amendment and the National Labor Relations Act (NLRA) even though the case didn’t pertain specifically to social media.

This matter was decided in favor of a newspaper last December when a U.S. Appellate Court vacated an “entire adverse decision of the NLRB” concerning its discharge of eight employees. The employees were terminated for their involvement in such activities as hanging a sign over a local freeway urging the public to cancel their newspaper subscriptions and writing a series of very biased articles concerning the environment and immigration issues.

While defending their actions, the employees and the NLRB categorized them as involving matters of “autonomy” and “journalism ethics.” Zinser says, “Those two terms were nothing more than code for content control.” He goes on to say, “The court chastised both, stating: ‘The power to so characterize them is not a power to conjure editorial control out of the publisher’s hands’.”

What Zinser finds particularly important about this decision is the court concluded that “the First Amendment affords a publisher — not a reporter — absolute authority to shape a newspaper’s content.” He comments that the court also derided the NLRB’s ruling because it denied the newspaper’s right to discipline employees who sought to remain on its payroll while at the same time called on its readers to cancel their subscriptions because it “would not knuckle under to the employees’ demands for editorial control.”

He adds: “The court further explained that simply wrapping an unprotected goal with an arguably protected goal does not serve to prevent an employer from taking adverse employment action against a staff member.”

Have a Social Media Policy

While these examples may bring some comfort that a company is in the right to exercise control over content published on its social media accounts, no one wants to take these disputes to the point where they jeopardize the business’s reputation or the employee’s job, let alone involving the NLRB or the courts. As Zinser observes in his article, “Protecting a media company’s content in this very competitive and changing environment is critical.”

The policy needs to “make it crystal clear that social media use by employees for business purposes results in content owned by the employer. That will be very helpful in protecting it.” In addition, he finds that, “Communications concerning the company’s social media policy will provide additional protection from organizations like the NLRB.”

Following are some specific examples of provisions that Zinser recommends including in a company’s social media policy:

Clear the Usage — Require employees to receive authorization from management before they use social media for business purposes that could drive readership or listeners to the main product.

Own the Accounts — TV and radio companies should own the social media accounts of all on-air talent. Newspaper publishers should own the social media accounts of their reporters and editors that drive readership to the publication. The accounts should be named after the reporters’ beats, and the passwords should be shared with the company. The employer will then own the relationship with the public followers.

Formalize the Policy — Every employer should have a comprehensive social media policy governing both business and personal use during working hours.

You can expect employees to support your efforts to clarify who owns the content and assist you in fleshing out your social media policy. A growing number of reporters view Twitter as a key tool for helping them to develop their news stories in addition to serving as a valuable promotions tool. At the same time, they also recognize, as Bleacher Report’s King Kaufman recently noted: “You are only one Tweet away from being fired.” A policy that allows them to take advantage of social media in order to improve their work while knowing their use is consistent with company policy is a win for them, a win for the station and most importantly a win for viewers who are looking for a comprehensive news story.

Journalists are also concerned about how information obtained from social media shapes the challenge of balancing the need to be first with a story to drive ratings at the expense of being wrong. This is one of the messages shared by HLN’s Jennifer Westhoven when she spoke at MFM’s Media Finance Focus annual conference in May. I’ll share more about that challenge in another column.

For now, I hope these experiences and suggestions from Michael Zinser serve as a catalyst to ensure that your business has a social media policy and it is ready to stand up to the growing demands that will be placed upon it. As always, please take these ideas as suggestions and do not rely upon them to create or evaluate a social media policy. I share them not with the intention of serving as legal counsel but rather to encourage you to seek it.

I also hope you will share your thoughts, experiences and suggestions either in a comment below or on MFM’s forum on LinkedIn.

Mary M. Collins is president and CEO of the Media Financial Management Association and its BCCA subsidiary. She can be reached at [email protected]. Her column appears in TVNewsCheck every other week. You can read her earlier columns here.