actiance whitepaper-social-media-legal-issues-canada

Legal Issues of Social MediaCanada

Executive Summary 4

Growth Of Social Media 6

Key Legal Issues 8

Privacy 8

Content Ownership 11

Intellectual Property Infringement 12

Employment Law 12

Criminal Activity 18

Regulatory Compliance 19

Key Legal Statutes For Operators Of Social Media Sites 20

Key Legal Statutes For Users Of Social Media Sites 22

Industry-Specific Legislation And Regulatory Bodies 22

Financial Services 22

Energy And Utilities 23

Healthcare 24

Best Practice Recommendations 25

About Actiance 26

Table of Contents

| Social Media Success5

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| Legal Issues of Social Media4 Legal Issues of Social Media | 5

The rapid rise of social media has assumed a more prominent position

for many individuals, both personally and professionally. Most of us are

familiar with Facebook, LinkedIn, and Twitter, but there are literally

thousands of other similar sites that aim to make us more “social,” all the

while expanding our pool of connections, opportunities, and information.

These social media sites have moved beyond the novelty stage and into the

mainstream. They have become so pervasive that they have emerged as

effective tools within the corporate setting as well. The line separating the

recreational use of these tools from legitimate business purposes has

become increasingly blurred. Marketing teams now use social media to

promote their products; Human Resources use them to research potential

hires; Sales use them to prospect for new business; and Customer Services

use social media to openly and proactively deal with issues. This broad

adoption of social within the workplace has inspired increased legislation

and regulatory activity as governments throughout the world attempt to

establish guidelines on how to properly safeguard both consumer and

corporate interests.

The potential legal issues that can arise from social media activities run

the gamut. Privacy, unauthorized activities, and intellectual property issues

stand top-of-mind for many individuals and enterprises. Other areas,

such as content ownership, regulatory compliance, and even criminal

activity, are impacted by social, too.

Executive Summary

Such legal ramifications inevitably engender discussions on what makes

for good policy. Unfortunately, no blanket policy makes sense for everyone

and everything. Each situation must be looked at individually, keeping in

mind social mores and corporate cultures, in developing effective policies.

Regardless of the policy chosen, there are technology solutions available

that enable individuals and companies to safely conduct business in this

new “social” environment.

This white paper examines some of the legal issues that Canadian

organizations must consider when assessing how best to leverage social.

| Social Media Success7| Legal Issues of Social Media6 Legal Issues of Social Media | 7

The statistics are mind-boggling. Facebook nearly a billion users, Twitter

500 million, LinkedIn 175 million. Each one could be a country unto

itself (and a large one at that).

Use of these social media sites has proliferated within the corporate setting

as well. What started out as a fad now has evolved to the point that social

media is being used as a legitimate, effective business productivity and

collaboration tool. Individuals and companies use social to market their

products and services, advertise sales and promotional offers, and extend

their brand reach. Similarly, they use it to enhance customer relations,

conduct market research, or solicit feedback on current and future products.

Both consumers and enterprises use social to build connections and find

like-minded individuals who share common interests and goals. For instance,

there are thousands of special-interest groups on LinkedIn, such as the

Canadian Securities and the Web Security Experts group. There are groups

for just about every profession imaginable. Group members use LinkedIn

as a forum to share ideas, findings, and anecdotes. The net result is the

formation of a tight-knit community, freely exchanging information.

Growth of Social Media

Recruiting is another popular activity facilitated by social media. Due to

the extensive networks each individual has developed through his or her

Facebook, LinkedIn, and/or Twitter accounts, recruiters can tap into a vast

network of potential job candidates. It is plausible to assume that if you

are an attorney, for instance, you’re likely to know several attorneys as

colleagues, friends, or acquaintances. Many attorneys keep in touch with

their classmates from law school or colleagues at firms or companies in

which they previously worked. Thus, if a recruiter were to look at the

LinkedIn profile of Larry Lawyer and subsequently contact him, the recruiter

will likely find Larry’s connections as a valuable pool from which to identify

possible candidates for that open requisition in the legal department.

Similarly, human resource departments might use social media to do

research on potential hires. It is amazing the types of information (be it

words, pictures, or video) that individuals put on their Facebook, LinkedIn,

and Twitter pages. Individuals need to be wary of what they are putting

“out there” because you never know who might be looking at your personal

information on the Internet.

The openness of social media, the engagement it facilitates, and the

opportunities it presents inevitably raise questions on several legal fronts,

many of which have yet to be fully resolved.

Number of Social Media Users

IM 2M 3M 4M 5M 6M 7M 8M 9M 1B

> 1 BILLION

500 MILLION

175 MILLION


Key Legal Issues

As the social media phenomenon has chugged along, the case law

surrounding this area is still unsettled. However, some seminal cases have

made its way through the courts in Canada and have laid the foundation for

future refinements or expansions of existing laws and regulations.

Privacy

Perhaps no issue sparks more debate with respect to the legal ramifications

of social media than privacy. What with so much content out there and

so many ways to access these social media sites, privacy has become

somewhat elusive for many. From a legal standpoint, whether an individual

has a reasonable expectation of privacy or not is the critical factor in

determining whether one’s actions are protected by privacy laws. Canadian

courts have extended the concept of “reasonable expectation of privacy”

to electronic communications and, implicitly, social media.

Canadian law is quite clear on the privacy standard for email in a corporate

setting. Canadian employees cannot expect any “reasonable expectation

of privacy” when using company equipment (e.g., a work computer) or

company email systems. The issue in Canadian law boils down to a “balance

of interests,” where the interests of the employer or hiring organization and

management rights need to be considered as well as the employee’s right to

privacy. As stated by Arbitrator Munroe in Re Pope & Talbot Ltd. and Pulp,

Paper and Woodworkers of Canada, Local 85:

“…just as an employee’s privacy interests require protection against the

overzealous exercise of management rights, so also must an arbitrator

acknowledge the employer’s legitimate business and property interests.

What is required, then, is a contextual and reasonable balancing of

interests. There is no absolute rule affording precedence to one

legitimate interest over the other…” 1

In other words, there’s a bit of subjectivity involved in determining whether

an employee has a reasonable expectation of privacy, but regardless,

the employer has a duty to act fairly and reasonably.

For example, in Camosun College v. CUPE, the court ruled against an

employee who used the college’s email system to send a message to Union

members that included critical statements about some faculty members.

This email was forwarded to management, resulting in a disciplining of the

employee. The courts upheld the legality of the disciplinary action, stating

that no reasonable expectation of privacy was held to exist.2

Regarding privacy on workplace issues, Canadian legal experts recommend

advising job candidates and obtaining consent before using social media

for background checks as part of the hiring process. The consensus opinion

is that using publicly available Web content to gather information as part

of the hiring process is acceptable, unless the online information is

password-protected.

Once on board, the employer is responsible for obtaining the employee’s

consent to be bound by the policies and procedures of the hiring company.

In the case of Briar et al v. Treasury Board (2003),3 for example, 54 employees

were disciplined for sharing sexually degrading images among themselves

over the company email system. The company’s email system included a

disclaimer that the system was being monitored to ensure compliance

with company policy. This warning was considered reasonable and overrode

any protections outlined in Section 8 of the Canadian Charter of Rights

and Freedoms. Canadian law includes a number of cases where concerns

about employer monitoring of the workplace, aside from email, follow

similar guidelines.


The same is true for social media. In the case of Lougheed Imports Ltd.

in British Columbia, two employees of West Coast Mazda were terminated

for anti-management postings on Facebook that were deemed “offensive,

insulting and disrespectful.” Both employees were strong supporters of a

unionization movement, and both were Facebook friends with a manager of

the company, who took offense at negative posts targeting management, the

business, and the company’s products. When the employer conducted an

investigation and confronted the two employees with copies of the postings,

the employees denied posting the comments on Facebook. Following that

meeting, both employees were terminated. In response, the union filed an

unfair practices labor complaint with the British Columbia Labour Relations

Board alleging the employer did not have just cause to fire the two workers.

The Board dismissed the complaint, ruling:

“…the work offence was serious insubordination and conduct damaging

to the employer’s reputation.” In making the finding, the Vice-Chair

relied on a prior Ontario decision in Leduc v. Roman that determined

that the employees could not have an expectation of privacy and that

Facebook postings are “akin to comments made on the shop floor.” 4

The key takeaway here is that employees’ privacy rights are not assured in

a corporate setting. A violation must be viewed in light of a balancing of

interests, so if the employee’s online conduct is potentially harmful to the

employer and in violation of stated corporate policies, that employee’s

privacy rights may not be valid. It’s up to the individual to be mindful of

privacy settings and the corporate policy on online conduct.

Content Ownership

As with many sites that are rich in content, the issue about who really

owns that content inevitably arises. For instance, when using Twitter to

communicate information about a company, does the employee or the

company own the content or own the followers? Typically, each site has

its own Terms of Use page, detailing the extent of its rights over end

users’ content.

There is legal precedent relating to the ownership of social media content.

Customer databases and contact lists are considered proprietary and are

trade secrets protected by law. However, that protection is lost if those

contacts can be easily replicated using online information, including social

media. Typically, the court first looks at any pre-existing agreements

detailing ownership. If there is no such agreement, then the court will

assess whether the employee’s social media participation was sponsored

or encouraged by the employer, or whether the employee used the

employer’s resources to create and manage the social media account.

In most cases, the employer will be found to own the content and contacts

of a social media account, but the employer cannot claim ownership for

contacts and content cultivated prior to employment.


Intellectual Property Infringement

Social media has generated an explosion in online content and various

means to access it, which raises several concerns such as:

• Copyrightinfringement

• Trademarkinfringement

• Violatingpersonalityrights

• Defamationandtradelibel

• Misuseofconfidentialinformation

Even a seemingly innocent mistake can lead to a violation, such as tweeting

a song to a friend or posting a copyrighted photo or graphic on Facebook.

‘Using any third-party content without permission can result in civil and

criminal liability.

And there are deliberately malicious potential intellectual property violations

as well. The most common is a disgruntled ex-employee who decides to exact

revenge on a former employer by releasing confidential information through

Facebook, Twitter, or some other social network. In such cases, the employee

would clearly be held liable, but the company can also take the following

steps to protect its intellectual property.

Monitor infringements

Before a business can enforce its IP rights, it has to have a plan in place to

monitor and detect abuses. The plan should include procedures to educate

employees about IP abuse and include a strategy to search social media

content for infringements on a regular basis. Given the sheer volume

of social media content, it is impossible to keep track of all violations,

and every violation is not of equal concern. Many blog posts, for example,

have a short shelf life, but postings that are read by a number of people

or shared by thousands of users are of greater concern. Many companies

are using online monitoring services to track copyright infringements and IP violations,

not only because these services can track a broad spectrum of online sites, but they

also can monitor trends and user traffic.

Collect evidence

Due to the fleeting nature of social media content, violations can be difficult to track

and even more difficult to prosecute. IP holders need to be prepared to take immediate

steps to record and preserve evidence of a violation, keeping in mind that the evidence

may be needed later to establish that a violation actually occurred.

Identify perpetrators

Once an organization determines its rights have been violated, the next step is to

identify the parties responsible and take appropriate action. The anonymous nature of

the Web can make this challenging, and Canada has interpreted its laws on Internet

privacy in different ways.

In the case of Mosher v. Coast Publishing and Google, the chief of the Halifax fire depart-

ment sought a court order requiring a newspaper publisher to disclose information about

two correspondents who authored allegedly defamatory statements in the newspaper.

Both the publisher and Google advised the court that they would not appear in opposition

to the application and that they would obey any order issued by the court. The judge of

the Supreme Court of Nova Scotia granted a disclosure order, noting that “the court does

not condone the conduct of anonymous internet users who make defamatory comments

and they, like other people, have to be accountable for their actions.”5

However, in the case of Warman v. Wilkins-Fournier, a three-judge panel on the Ontario

Superior Court of Justice ruled on a complaint filed against eight defendants and the

moderator of a message board to identify the defendants who posted content under

pseudonyms. The panel granted the application for a disclosure order to identify the

users. On appeal, the court considered a petition by the message board operator and


both the Canadian Civil Liberties Association and the Samuelson-Glushko Canadian

Internet Policy and Public Interest Clinic. The court ruled that an individual’s privacy is

protected under the Canadian Charter of Rights and Freedoms, but disclosure cannot

be unreasonably withheld if it is required to prevent the “abuse of the Internet.”

Clearly, social media opens up new possibilities for IP loss and copyright violation.

It is up to the organization to protect its intellectual property both through pre-emptive

action, such as educating employees, and through monitoring and pursuing violations

where appropriate.

Employment Law

The use of social media in the workplace is raising new legal concerns for human

resources departments. In general, employment agreements should be written with

as much detail as possible, including provisions for social media background checks,

ownership of social media accounts, appropriate use of social media (both on and off

the job), monitoring use of company technology and computer assets, confidentiality,

use of corporate property, and ramifications of breach.

Harassment

The proliferation of social media sites has opened up a flood of potential avenues for

harassment. Harassment via electronic communications is treated in the same fashion

as other types of harassment, including inappropriate jokes, contact, and other

inappropriate conduct. Employers have a legal obligation to protect employees in the

workplace, and that protection extends to cyberbullying. Facebook posts, tweets,

and other forms of online communication are evaluated in the same manner as

in-person or other forms of communication.

Discrimination

Social media policies need to be nondiscriminatory, giving no weight to race, gender,

age, national origin, or sexual orientation. The employer’s online actions (and those of

their representatives) are governed by the same anti-discrimination standards and laws

that affect all other employment actions. Online recruiting is an obvious area where

social media discrimination could be an issue. More companies are using sites

like LinkedIn to screen job candidates. Companies should protect themselves by

maintaining a written policy, including a list of specific websites used for reference

checking. It’s also essential that the same policies and procedures be applied

evenly for all employees and job applicants.

Unfair competition

Social media can play a role in litigation involving unfair competition. For example,

wooing customers from an ex-employer using social media channels may be an

employment law violation, such as a termination agreement or confidentiality

agreement with a previous employer. Poaching job candidates or customers using

social media can be considered unfair competition. As part of policies and procedures,

it is best to outline the rules of engagement and inappropriate use of social media

sites to attract customers and co-workers to a new company.

Then there is the issue of restrictive covenants on non-solicitation. For instance,

if an employee maintains customer connections through Facebook and LinkedIn,

then leaves the company to work for a competitor, does updating the employment

status in his or her profile constitute solicitation? What about a general announcement

to hundreds of connections about a new job? These are examples of grey areas

where the law is still unsettled.


Defamation

Defamation is an area where social media can have an impact. Lawsuits can result

from unchecked comments made by employees posted from work or using office

equipment. Both current and former employees can defame a company or individuals

in any number of ways through social media sites, chat rooms, blogs, wikis, and other

online forums.

Note, too, that defamation is not a one-way street. Employers can defame employees

via social media and vice versa. When hiring, for example, it can be a fine line

between providing information to an employer about a candidate versus damaging

that candidate’s reputation with defamatory statements. To be deemed actionable,

a statement must actually damage the reputation of the person or company bringing

the suit, so stating an opinion is not enough to prove defamation.

Illegal Activity

Surprisingly, an employer who discovers that an employee is conducting illegal

activities online is not obliged to report that employee’s activities, with some

exceptions. Also, if an employee is accused of misconduct that could involve illegal

activities, the employee may be concerned about assisting in a criminal investigation

since voluntary statements could be used against that employee. One legal authority

suggests that the employee could be considered to be compelled to disclose incrimi-

nating information, and Canadian law protects individuals from self-incrimination.

Ownership of Social Media Accounts

Already alluded to earlier, whether the company or the employee owns a social media

account has yet to be resolved. For instance, if an employee maintains a Twitter

account for a company, develops a following, and then leaves the company for a

competitor, it’s unclear who owns the rights to the account and the goodwill that account

may hold. Having a policy in place, delineating who owns what, is a prudent first step.

Disclosure of Confidential Information

Of course, disclosure of confidential information via social media, either

inadvertently or maliciously, can lead to trouble for the employer. Inaccurate

information also can lead to problems, especially if the company is in a

regulated industry, such as financial services, which is subject to IIROC

regulations. If, for example, an employee makes an inaccurate statement

or leaks proprietary information on a social media site, the company could

be held liable.

The most relevant Canadian regulation is National Policy 51-201,

which provides guidelines for information disclosure for public companies.

Section 6.13 discourages participation in electronic chat rooms and forums

and recommends that the company’s disclosure policy prohibit such

participation. Section 6.13 also warns against “selective disclosure” when

responding to email or comments, so as not to disclose information that is

not public, and recommends companies adopt a “no comment” policy.6

To protect themselves and remain compliant with regulations, companies

need to be diligent in monitoring the activities of their employees, lest the

latter make statements that could be attributed to the company as a whole.

Many employers are even starting to take more proactive measures, such as

deploying technology solutions that enable employers to monitor, manage,

and archive the social media activities of employees.


Criminal Activity

The reach of social media sites has made them attractive targets for crimi-

nal activity, and they are increasingly being used by both criminals and law

enforcement for illegal and investigative purposes, respectively. Occasionally,

perpetrators of crimes boast about their misdeeds on sites such as Facebook.

More often, organized criminal groups, such as the Hells Angels, use social

media sites to promote themselves and their lifestyle for recruitment, and

social media sites are being used by terrorists and other criminal organizations

as a communications tool to coordinate illegal activities.

The most common cybercrimes are fraud, where the victim is enticed to

surrender personal information or private financial data to claim an

inheritance or award. The scam usually requests processing fees and other

monies to facilitate a claim. Often, local Canadian co-offenders are

included in the scam to give victims a local contact for a greater sense

of security. Another popular cybercrime is the online dating scam or

“sweetheart swindle,” where a criminal will cultivate an online romance

with a victim to solicit money and gifts over time. Burglars also are

starting to monitor Facebook to identify potential victims who

are traveling.

Consequently, law enforcement officers scour the social networks for leads or

clues on criminal activity within their jurisdiction. Insurance companies and

others also are using Facebook photos and searches of social media sites as

evidence of fraud and other criminal activity.

Regulatory Compliance

Another key area where social media is under the microscope is regulatory

compliance. Fueled by the high-profile financial scandals of the last ten

years, regulatory bodies are implementing tighter regulations for industries

such as financial services, health care, and energy. The rapid growth of

social media has driven regulatory agencies such as the Investment Industry

Regulatory Organization of Canada (IIROC) to develop or refine guidelines

for social media sites.

For example, IIROC recently amended Member Regulation Notice MR0281,

Guidelines for the Review of Advertisements, Sales Literature and

Correspondence, for its dealer members to encompass social media:

All methods used to communicate including, but not limited to,

Facebook, Twitter, YouTube, blogs, and chat rooms, are subject to

the IIROC Dealer Member Rules. The content of Notice MR0281 has

been updated to clarify that regardless of the method by which

communication takes place, and however social media websites

evolve, Dealer Members must ensure compliance with applicable

regulatory requirements and securities legislation.7

Many of these new and revised regulations classify social media as a form

of electronic communication to be treated no differently than email. As a

result, companies that are subject to regulation must keep tabs on what’s

being communicated, to and from whom, so as not to violate any applicable

regulation or guideline. Furthermore, all these communications must be

logged and archived.

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| Legal Issues of Social Media20 Legal Issues of Social Media | 21

Although a relatively new area of law, some key legislation has already been

enacted that impacts social media sites.

Copyright Modernization Act, Bill C-11

The Canadian Parliament has been working to update the Copyright Act,

which has not been reformed since 1997. Canadian legislators are looking to

reform the law to protect digital content, and they are looking to the Digital

Millennium Copyright Act enacted in the United States as a template.

The result is the Copyright Modernization Act, Bill C-11, which received

royal assent on June 29, 2012.

Under Section 512(c) of the U.S. Digital Millennium Copyright Act, Internet

Service Providers (ISPs) or websites are absolved from liability for copyright

infringement as long as they promptly block access to the allegedly

infringing material or remove it from their systems if they receive a request

from the copyright owner to take the infringing content down. Many of the

same regulations have been included in the Copyright Modernization Act,

Bill C-11, such as the following:

•RequirementforInternetserviceproviderstonotifytheircustomerswhen

they violate the copyright law if a copyright holder informs the ISP of

possible piracy. The ISP is required to retain “relevant information” about

the offending user, such as their identity, and that information could

potentially be released to the copyright holder with a court order.

•ExemptingISPsandsearchenginesfromliabilityforthecopyright

violations of their users if they are acting strictly as intermediaries in the

hosting, caching or communication of copyrighted content.

Key Legal Statues for Operators of Social Media Sites

•ProhibitingapersontoprovideaserviceovertheInternetoranother

digital network that the person “knows or should have known is designed

primarily to enable acts of copyright infringement.” This clause is targeted

at websites created for the purpose of distributing copyrighted content,

such as the many popular peer-to-peer file-sharing sites used to swap

video and audio, and is meant to “make liability for enabling of

infringement clear.”8

Personal Information Protection and Electronic Documents Act (PIPEDA)

Privacy is a primary concern for many Canadians and is regulated by the

Personal Information Protection and Electronic Documents Act (PIPEDA).

In response to privacy concerns raised by the Canadian Radio and

Telecommunications Commission (CRTC), which has jurisdiction over ISPs,

the Office of the Privacy Commissioner (OPC) applied a higher standard

for ISPs than normally imposed by PIPEDA.

The OPC ruled that “all primary ISPs, as a condition of providing retail

Internet services, not to use for other purposes personal information

collected for the purposes of traffic management and not to disclose such

information.” Since “the bedrock of PIPEDA is individual consent,

which can be express or implied, depending on the circumstances,”

the OPC “also ruled that ISPs include “in their service contracts or other

arrangements with secondary ISPs, the requirement that the latter not

use for other purposes personal information collected for the purposes

of traffic management and not disclose such information.”9


Key Legal Statues for Operators of Social Media Sites

Industry-Specific Legislation And Regulatory Bodies

The protections of users of social media sites differ from those of the sites

themselves. Essentially, social networking users cannot avail themselves of

the same immunities allowed the sites or ISPs. Since no statutory immunities

exist to shield users, the standard laws pertaining to defamation and infringe-

ment apply. If a user is found to have posted defamatory content, the user will

be held liable, even if the site can escape liability under PIPEDA. Similarly,

if a user posts material that infringes upon another’s copyright, the user will

face liability for the infringement, despite the site’s potential safe harbor

under the Copyright Modernization Act.

There are numerous regulatory bodies and legislation that are industry-specific.

In Canada, as in the U.S., the financial services, energy, and healthcare indus-

tries are three of the most heavily regulated sectors. There are several Canadian

regulatory bodies that oversee social media use and provide guidance to their

members, and many of the regulations themselves mirror those of the U.S.

Financial Services

Investment Industry Regulatory Organization of Canada (IIROC)

IIROC has regulatory responsibility for the investment industry and sets and

enforces the rules regarding the business and conduct of dealer firms and their

registered employees. In December 2011, IIROC issued an amended version

of Member Regulation Notice MR0281, Guidelines for the Review of Advertise-

ments, Sales Literature and Correspondence, stating, “All methods used to

communicate including, but not limited to, Facebook, Twitter, YouTube, blogs,

and chat rooms, are subject to the IIROC Dealer Member Rules.”10

Canadian Securities Administrators (CSA)

The CSA encompasses securities regulators from the ten provinces and

three territories in Canada to protect investors from unfair, improper,

or fraudulent practices, and to promote fair and efficient capital markets.

The CSA has followed IIROC’s lead, classifying social media communications

as advertising and sales literature, with the same guidelines to prevent

misrepresentation. Both IIROC and CSA encompass all social media

platforms in their guidelines.

Energy and Utilities

National Energy Board (NEB)

The NEB is an independent federal agency established in 1959 by the

Parliament of Canada to regulate international and interprovincial aspects

of the oil, gas and electric utility industries. The purpose of the NEB is to

regulate pipelines, energy development, and trade in the Canadian public

interest. These principles guide NEB staff to carry out and interpret the

organization’s regulatory responsibilities.

North American Electric Reliability Corporation (NERC)

NERC is a non-profit whose charter is to develop standards for power system

operation, monitor and enforce compliance with those standards, assess

resource adequacy, and provide educational and training resources as part of

an accreditation program to ensure power system operators remain qualified

and proficient.


Healthcare

Health Canada

Health Canada develops, implements, and enforces regulations, legislation,

policies, programs, services, and initiatives in collaboration with other federal

partners, provinces, and territories. Health Canada is the administrator of

the Canada Health Act and ensures that the principles of Canada’s universal

healthcare are respected, allowing Canadians to be confident in the services

they receive from the public health care system, including privacy protection.

Health Canada has established an Access to Information and Privacy (ATIP)

Division to process formal requests made under the Access to Information

Act and the Privacy Act.

The Privacy Act

The Privacy Act protects an individual’s privacy by setting out provisions

related to the collection, retention, use, and disclosure of personal informa-

tion. The Act also gives individuals the right of access to information about

themselves held by the federal government with certain specific and limited

exceptions.

Personal Information Protection and Electronic Documents Act (PIPEDA)

PIPEDA is federal legislation that protects personal information, including

health information. It outlines ten principles that organizations, individuals,

associations, partnerships, trade unions, and healthcare organizations must

follow when collecting, using, and disclosing personal information in the

course of a commercial activity.

Best Practice Recommendations

Developing a social media policy that is appropriate for your company is

the most critical step in managing the use of these sites within the enterprise.

A policy should be clearly drafted, including the acceptable uses of social

mediaanditsassociatedtechnologies.Violationsofthesepoliciesshouldbe

unequivocally spelled out as well, so that employees are aware of the

ramifications of policy breaches.

Of course, disseminating the policy within your company is arguably as

crucial as the creation of the policy itself. What good is the policy if no

one knows about it? Hence, it’s imperative that your employees are kept

sufficiently informed of the latest version. Perhaps periodic all-hands emails

or meetings would be an effective approach to keep everyone current.

Finally, enforcing the policy gives it credibility, essentially putting some

“bite” behind the “bark.” If an employee breaches the policy, knowing that

termination is the punishment, then the company should follow through

and let the offending party go, lest the policy be rendered toothless.

As long as the policy is fair and clearly communicated from the outset,

then the company can confidently enforce the policy while operating within

the confines of the law.


1 Re Pope & Talbot Ltd. and Pulp, Paper and Woodworkers of Canada, Local 8 (2003) 123 LAC 4th 115 (D.R. Munroe)

2 Camosun College v. C.U.P.E., (1999) B.C.C.A.A.A. No. 490

3 Briar v. Treasury Board (2003) PSSRB 3

4 Lougheed Imports Ltd. v. United Food and Commercial Workers International (2010) BCLRB No. B190/2010

5 Mosher v. Coast Publishing Ltd. (2010) NSSC 153

6 Chris Bennett and Con Collie, “The Risks of Using Social Networking Sites, The Lawyers Weekly, June 4, 2010

7 IIROC Notice, Member Regulation Notice MR0281, Guidelines for the Review of Advertisements, Sales Literature and Correspondence, December 7, 2011

8 Copyright Modernization Act, Bill C-11

9 Re: Telecom Public Notice CRTC 2009-71 - Review of the regulatory measures associated with confidential customer information and privacy; CRTC Reference: 8663-C12-200903387

10 IIROC Notice, Guidelines for the review, supervision and retention of advertisements, sales literature and correspondence, December 7, 2011, 11-0349

ReferencesAbout Actiance

Actiance enables the safe and productive use of unified communications,

collaboration, and Web 2.0, including blogs and social networking sites.

Actiance’s award-winning platforms are used by 5 of the top 5 Canadian

banks, 9 of the top 10 US banks, and more than 1,600 organizations

globally for the security, management, and compliance of unified commu-

nications, collaboration, and social media channels. Actiance supports all

leading social networks, unified communications providers, and IM platforms,

including Facebook, LinkedIn, Twitter, AOL, Google, Yahoo!, Skype,

Microsoft, IBM, and Cisco.

Socialite

The Socialite platform helps organizations protect their brand and ensure

compliance while allowing employees to share relevant content, measure

impact, and increase engagement. Socialite controls access to more than

200 features across social networks but can also moderate, manage,

and archive any social media traffic routed through the solution.

| Legal Issues of Social Media28

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actiance whitepaper-social-media-legal-issues-canada

Social Media

social media activities

growth of social media

users of social media

rapid rise of social

new social environment

mind social mores

broad adoption of social

key legal issues