Protecting Trade Secrets in the Age of Social Media
Living without social media seems unimaginable. But its ubiquity also raises the question: how do we live with it, especially when it comes to proprietary business information? As the pandemic forced many employers to embrace telecommuting as a way of life, they faced the challenges of using social media without risking exposure of their intellectual property. Fortunately, National Law Review offers a guide to developing best practices to protect the most common types of proprietary information.
Trade Secrets
A trade secret is information not generally known that has actual or potential economic value and for which the owner must take reasonable efforts to maintain secrecy. Remote workers may have copies of client lists, product specifications and other protected information on home computers with less security than company networks, and they might share personal storage with other people, inadvertently exposing the information. Best practices to secure this data include:
Establish clear internal policies to cover (1) at-home security measures, like password protection, reasonable locking periods for electronic devices and prohibitions on sharing personal electronic storage devices with non-employees; and (2) parameters on posting work-related information.
Limit access to trade secrets to employees who need to know it and ensure they know and follow restrictions for use of the information.
Assist employees in knowing which trade secrets they likely will encounter in their job and the confidentiality of the information.
Copyrights
Original work in a tangible medium is subject to copyright protections. Even texts and social media posts can qualify. Best practices for copyright protection in social media include:
Obtain permission to use the other’s work, even if you found it on the internet. Be familiar with the terms of use for every site containing information you wish to pass along. Some sites, such as National Law Review, have terms that allow sharing of content. Even then, best practice is to properly attribute and link to the work.
Monitor use of your copyrighted material and promptly address any unauthorized use. Keep in mind that, in limited circumstances, a third party may use copyrighted material without consent under the fair use doctrine.
Consult Terms of Use before posting on social media platforms. Be aware that, by posting, you may be giving others permission to use your work.
Trademarks
Protect the trademarks of your brand from loss or dilution with these practices:
Avoid generic usage such as pluralizing, using the trademark as a verb or noun, making it possessive, or allowing use of the trademark as the common name of the product.
Use a distinctive typeface, color, and style to set your mark apart from others. Be consistent in how it appears.
Mark your trademark with applicable registration® or trademark™ symbols on all marketing materials, websites, and packaging. If you use another’s mark in communication, adhere to its owner’s usage rules.
Balancing the opportunity and risks of social media is a fact of life in business today. Clear policies are crucial. The value of trade secrets depends on the “secret” side of the equation, regardless of changes in how and where your company operates. Investing in the development and enforcement of protective procedures in consultation with your employment law counsel is essential. We are, as always, happy to help.