Although the use of social media in organisations is on the rise, many organisations do not have comprehensive governance policies in place for its use, according to Gartner.
By the end of 2013, half of all companies will have been asked to produce material from social media websites for e-discovery, so enterprises need an overall governance strategy for all applications and information, and this strategy should include content created on social media.
"Social media content is like all other content that is created by companies and individuals and is subject to the same rules, laws and customs," says Debra Logan, vice-president and distinguished analyst at Gartner. "Policymakers need to keep policies simple when it comes to what should and should not be done online. A good rule of thumb is that whatever the company code of conduct is for in-person encounters, and whatever the rules are for general good behaviour and common sense apply in the online world as well."
Logan says that the legal landscape around social media remains a patchwork, due to overlapping, conflicting and contradictory laws and regulations, in addition to the procedural rules propagated by national and international legislative and regulatory bodies. Since there is no guarantee of absolute safety, the safest option is to have a consistent policy and apply it consistently.
Although there are some specific laws and regulations, such as the SEC Rule 17a-4, that apply to certain vertical markets that make the governance of social media relatively easy, for most other businesses there are no clear rules, and it is up to individual organisations to decide how to use and govern social media. Gartner does not expect for there to be clear guidance from courts or regulators in the near future.
"In e-discovery, there is no difference between social media and electronic or even paper artefacts. The phrase to remember is 'if it exists, it is discoverable'," says Logan. "Unique aspects of social media present additional challenges, but as with an overall information governance strategy, the key to avoiding or mitigating potential legal issues in the use of social media for business purposes is to have a governance framework, policy and user education."
Logan says that internally managed collaboration and social media content is coming up frequently in e-discovery requests. The more-integrated the system (for example, unified communications), the more likely one form of content is reasonably calculated to lead to the discovery of admissible evidence. Because there is legal uncertainty about social media in e-discovery, managing it is challenging, and claiming that personal social media content is private is no shield for the individual as recent cases have shown.
She points out that, in some cases, it may be appropriate to ban access to social media in the workplace. Indeed, Gartner estimates that by the end of 2012, 50 per cent of companies will attempt block access to some or all social networking sites.
"If, for example, a technology creates content that cannot be captured for archival purposes and that archive is required by law, then the organisation must tell employees who are subject to the rules not to use the technology even unofficially," she says. "They could do so anyway, of course, because of the free availability of many consumer-grade social media sites, but doing so might violate the conditions of their employment or professional licensing resulting in the most-stringent of penalties, particularly in the case of lawyers, brokers, doctors and accountants."