iStock_000011909666Small.jpgPeter Drucker noted that “The most serious mistakes are not being made as a result of wrong answers. The truly dangerous thing is asking the wrong questions.” 

Mr. Drucker’s advice is particularly appropriate when it comes to legal issues involving social media and employees. In this regard, there is no shortage of general “answers” in the form of sites offering sample social media policies (over 170 policies and counting) and even the potential for very good answers in upcoming publications. 

But businesses should not make the mistake of focusing only on legal “answers” when it comes to benefiting from social media. This is because when social media policies and procedures are addressed strictly from a legal/attorney perspective, most businesses end up with a peanut butter solution, i.e., a social media policy to spread evenly over every possible risk and situation under the sun and several contingent provisions in the event the sun fails to rise.

Case in point, the American Institute of Architects (AIA) social media policy warns its employees to:

Be Sensitive to Antitrust Issues: There are stringent requirements by the AIA that you comply with antitrust laws. What’s antitrust? Antitrust laws promote vigorous competition and protect consumers from anti competitive business practices.

Who doesn’t know how to comply with antitrust laws?   

This example is not a knock against risk management, which should be a component of any business process. This social media policy, however, illustrates that managing social media risks requires realistic and practical considerations. Requiring employees to have a working knowledge of antitrust laws to comply with a social media policydoes not fall into either category. 

Two Questions To Ask Before Drafting a Social Media Policies 

Against this backdrop and returning to the importance of asking the right questions, there are numerous legal and business process-related questions that should be addressed. But two fundamental questions employers should ask before implementing a social media policy are as follows:

First, who or what is the first priority you want employees to consider with respect to social media? While this will generally be customers, it may also include a brand, a critical business relationship or products. Once this question is answered, employers are then able to specifically define what is unacceptable when it comes to using social media involving their number one priority. However, this question is answered, it provides a quick check-point for an employee to consider before digitally memoralizing a thought in a Tweet, blog post, Facebook update, or whatever is next. 

Second, what is the minimum level of responsibility your employees should have to your first priority? For example, Liz Heron, the director of social media at the New York Times, recently explained that “[w]e basically just tell people to use common sense and don’t be stupid.” Certainly “stupid” may be subject to varying interpretations. But policies like the New York Times can be effective when employees understand they are expected to not be stupid, i.e., do no harm, to the employer’s number one priority. 


There is no “cookie cutter” approach to drafting an effective social media policy. But having a multi-page dissertation of legalese and stock provisions intended to cover every social media situation and legal risk is far from a solution. In fact, such broadly written policies are actually coming under fire by an aggressive National Labor Relations Board.

So instead, a universal goal for employers should be to cut through the clutter of confusing or overbroad restrictions and provisions to provide a social media policy employees are likely and even motivated to follow. Also such restrictions impose an opportunity cost on the employer in terms of trying to actually enforce the policy.