challenging requirement. Links to the necessary information may furnish a partial
solution. To date, FDA has not sent warning letters to drug companies on this issue,
but it would be wise to watch for just such
activity.
Many privacy questions arising from
use of social media are unsettled. The
extent to which courts will recognize
claims of privilege by employees using
company-issued equipment to communicate is a good example.
In Stengart v. Loving Care Agency,
Inc., 200 N.J. 204, 976 A.2d 382 (2009),
the New Jersey Supreme Court held that
attorney/client privilege applied to e-mails
sent by an employee using a personal
Web-based e-mail account to his personal
counsel, even though those messages were
sent via an employer-provided laptop, and
even though the employer’s policy stated
that employees should have no expectation of privacy in communications sent
over company equipment.
Yet in Scott v. Beth Israel Medical
Center, 17 Misc. 3d 934 (Sup. Ct. NY
Co. 2007), a New York court analyzing
similar facts found no such privilege. The
apparent conflict between these authorities
serves to demonstrate that pertinent areas
of the law remain in flux, and companies
may want to follow developments closely
to manage risk.
Another example is City of Ontario v.
Quon, No. 08-1332 (S. Ct. Dec. 14, 2009).
The Ninth Circuit held that police officers
had a reasonable expectation of privacy,
even when using police department-owned equipment, and even where official
departmental policy, signed by the officers,
stated that the department could monitor
computer use and electronic communications. The policy did not explicitly cover
text messaging. The court found that, notwithstanding its official policy, the department had developed an informal policy
that it would not review employee pager
text messages so long as the employee did
not exceed a text character limit, which
would have obliged the city to pay fees.
The Supreme Court has heard oral argument in the case and may hand down a
decision soon.
To deal with these and other issues,
companies need to adopt clear guidelines.
Doing so may prophylax against at least
some of the legal entanglements that might
otherwise ensnare the unwary. The FTC
guidelines discussed above, for example,
provide that employers who have estab-
lished appropriate procedures govern-
ing employees’ endorsements on blogs
are less vulnerable to FTC enforcement
actions. The policy-creating team may
need to be multidisciplinary, involving, for
example, marketing, internal communica-
tions, HR compliance, Web development,
IT, and of course legal counsel. In devel-
oping these policies, companies must also
bear in mind, among other considerations,
the First Amendment rights of employees.
Companies should also train supervisors
and managers on how to handle social
media issues.
v
Joseph McMenamin is a partner in the
Richmond, Va., office of McGuire Woods,
LLP. He is an attorney and a former emergency physician with an interest in medicolegal topics related to litigation in particular.
