@Midwest social media legal issues
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The past few years have witnessed an explosion of legal and regulatory activity social and other new media. This presentation examines several key areas, including copyright, trademark and related intellectual property concerns; defamation, obscenity and related liability; false advertising and marketing restrictions; gaming; data privacy issues presented by social media; and impacts of social media on employees and the workplace. Learn to identify legal risks and issues before they become full-scale emergencies and how to develop appropriate policies and guidelines covering social media activity.
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@Midwest social media legal issues
- 1. Social Media: Legal & Regulatory Compliance Presentation to June 21, 2012 David M. Adler, Esq.
- 2. Background • Social media provides the opportunity for authentic interaction and engagement • Business is Social: using these services as strategic marketing tools. • New technological developments often create new legal and business risks. • You will learn: 1. How to identify the legal issues 2. How to develop policies and procedures to avoid legal risks 3. How to maintain regulatory compliance. • DISCLAIMER: I Am Not Your Lawyer. This is NOT Legal Advice
- 3. Overview of Legal Risks • Copyright Infringement • Trademark Infringement • Right of Publicity • User-Generated Content • HR/Employer/Employee Relations • Fraud • Endorsement & Testimonials • Emerging Areas • Privacy • Regulations • CAN SPAM • FTC “Dot Com” disclosures • COPPA • FTC Privacy Report
- 4. Legal Risks: Copyright • Copyright protects “original works of creative authorship fixed in a tangible medium of expression • What this means: • CONTENT IS PROTECTED BY COPYRIGHT1 • GET PERMISSON FIRST • Practical Applications • Placing a hyperlink to a photo on a publicly-accessible web site2 • Use of photo from photo-sharing web site3 • Are “Tweets” protected by Copyright?4
- 5. Legal Risks: Trademarks • What is a Trademark/Servicemark? • Any word, name, symbol or device that signifies the source of goods or services • How Are Trademarks Used in Social Media? • Brand Names • Social Media Handles “@Midwest” • Facebook Groups/Pages • Comparative Advertising • How Are Trademark Rights Acquired? • Use • Registration • State & Federal • Practical Applications • Is Creating a Facebook Page about your favorite brand infringement?1 • Is Tweeting about a brand infringement? • Is using a trademark as a social media handle infringement?
- 6. Legal Risks: Publicity Rights • What is the Right of Publicity? • Prevents unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. • Largely protected by state law. • The Restatement Second of Torts recognizes intrusion, appropriation of name or likeness, unreasonable publicity, and false light. • Practical Applications • Unauthorized Use of One’s Name & Likeness • Ton LaRusa, manager of the St. Louis Cardinals baseball team sued Twitter, Keith Olberman, CNN recently acquired the rights to CNNbrk (CNN Breaking News), the largest Twitter account on record with 959,011 followers, 'owned' by James Cox, who doesn't even work for CNN. • The Philadelphia Daily News published comments from Philadelphia Eagles cornerback Asante Samuel's Twitter feed, only to find that his words were being 'tweeted' by an imposter.1
- 7. Legal Risks: UGC • What is User Generated Content (“UGC”)? • Simply put, anything that is uploaded/posted by a “user” • Used in a wide range of applications, including problem processing, news, gossip and research • question-answer databases (LinkedIn Answers), digital video (YouTube), blogging (Wordpress), podcasting, forums, review-sites, social networking, mobile phone photography and wikis. • What Are The Risks? • Social Media is a Conversation. You cannot control what someone else is going to say about you, your company, your product/service/brand. • Practical Applications • Unauthorized “fan” page1 • False/Deceptive/Misleading statements • Misappropriated content: Photos, Videos, Text • Defamatory/Objectionable language
- 8. Legal Risks: HR • Social Media is a business imperative • The NLRB released 3 Reports, the latest May 30, 2012 • An employer violates the Act if a rule “would reasonably tend to chill employees in the exercise of their Section 7 rights.” • Greater risks to regulated industries: FTC, FDA, FINRA, SEC. • Practical Applications • No Policy. According to Grant Thornton, as of Nov. 2011, 79% of companies surveyed did not have social media policies • Policy Unenforceable. In 2011, the NLRB had received 129 cases involving social media • Policy Unclear. Training employees is just the beginning; AU telecom co. Telstra (40,000+ employees) mandates training “3Rs” – responsibility, respect and representation • Policy Outdated. Oct. 2011 FTC settles with Frostwire, developer of p2p file-sharing application over the default privacy settings • Failure to Engage. Reputation Damage control
- 9. Legal Risks: Emerging Areas • Privacy • More time spent interacting through social networking sites than email • Mountains of Data previously regarded as private • “Profile page” • location and background, • real-time updates on moves and mood • groups that reflect the user's interests and views • Available to "friends” / “friends of friends” / “everyone” • Investigative GOLDMINE • Currently, NO Restrictions on Gathering, Using, Sharing or Storing • White House Privacy Bill of Rights • Do Not Track David M. Adler, Esq. & Assoc: Safeguarding Ideas, Relationships & Talent®
- 10. Legal Risks: Emerging Areas • Practical Applications • Mobile/GPS – location data • Stored Communications Act, 18 U.S.C. §2702 challenge to obtaining social networking data directly from a third party social networking website. • private messages on social networking sites are not readily accessible to the general public • “wall postings” and comments are not protected if available to a wider audience. • CA District Court granted Sony access to personally identifiable information of individuals who visited defendant's website, Twitter account, YouTube video and blog. • New State Laws • NY bills S6779 A8688 - would ban “anonymous” speech • AZ bill 2529 – criminalizes any speech that could be construed as cyber-bullying • WA SB 6251 – criminalizes providing access to third parties' “offensive” materials by online service providers
- 11. Legal Risks: Regulations • Axiomatic that advances in technology proceed faster than the law. • In addition to various federal statutes, Federal Trade Commission has implemented a number of initiatives to “protect consumers.” • Important Statues • Federal CAN SPAM Act: sets the rules for commercial email (not just SPAM), establishes requirements for messages, gives recipients the right to have you stop emailing them • FTC “Dot Com” Disclosures: Guidelines involve disclosing information about relationships with advertisers or endorsers that would have a material impact about how a prospective consumer would view the message. • COPPA: governs collection of personally identifying information of children aged 13 years or younger; requires parental consent.1 • FTC Privacy Report: December 1, 2010 FTC proposed a new framework for protecting consumer privacy, along with more specific and aggressive guidelines for those in the business of sharing consumer information with third parties.
- 12. Summary • Due Diligence • Is your firm aware of the legal and regulatory issues that impact social media? • Does your firm take a “best practices” approach to engaging customers, employees and business partners? • Does your firm have a Social Media Policy that address the firm’s philosophy and Behavioral, Channel, Contextual and Content Expectations? • Does your firm monitor social media channels for negative messaging or IP rights violations? • Does your firm have an action plan for addressing these risks?
- 13. Summary • Action Items • Proper Contractual Provisions • Code of Ethics/Code of Conduct • Social Media Policy • Monitoring • Google Alerts • Brand names/Trademarks • Social Media Handles • Executives Names • Facebook/Myspace/LinkedIn Pages • Updated Privacy Policy
Editor's Notes
- Note limited exceptions (e.g. government works, public domain) and work-for hire South Carolina case involving user ’s experience with BidZerk; placed link on his blog U.S. suit against Australian advertiser for using photo without permission Twitter's terms of service say you own your own posts; copyright law applies. Fair Use? In 2007, CCIA filed FTC complaint against Major league sports; Brooklyn Law School professor and EFF staff attorney Wendy Seltzer
- 1. Facebook legal policies: Advertising Guidelines and Pages Policies prohibit, false, misleading or deceptive practices.
- Get Permission Check your facts & Sources
- 1. Coca-cola: 2009 2d most popular Facebook page; Coke contacted creators and partnered with them
- WSJ article Feb, 22, 2011: Prosecution and defense lawyers are scouring the site for personal details about members of the jury pool that could signal which side they might sympathize with during a trial. Yes, but remember Title VII protected classes In Yath v. Fairview Clinics, 767 N.W. 2d 34 (Minn. App. 2009), a patient sued Fairview Cedar Ridge Clinic, two employees and others invasion of privacy, after learning that clinic employees had reviewed her medical file, learned that she had a sexually transmitted disease, disclosed this information to other people, and the information showed up on MySpace.
- 1. In 2007 When registering at thedollpalace.com, for example, a child under 13 is told “you need a parent’s permission to continue. Is a parent with you right now.” The child can then select “yes” or “no.” The “yes” selection allows the child to click “ok” at the bottom of a permission page. The “no” selection prompts a child to enter an e-mail address. An e-mail is sent to that address asking for consent; no subsequent verification is made.