#destshowBarbara F. Dunn, Esq.PartnerHowe & Hutton, Ltd
#destshowIntroduction• Social media is all around us and it’s hereto stay• Law is Playing “Catch Up” to Social Media
#destshowSocial Media Applications• Social networking– Third-Party Sites, e.g., Facebook, LinkedIn– Your site – “White label”*Control is key!
#destshowOther Digital AgeConsiderations• Blogs• Mobil APPS• Electronic Signatures• Online Privacy• Virtual Events• Video/Audiotaping of Speakers
#destshowSo, What Should I BeConcerned About?• Infringement Liability– Trademarks– Copyrights– Patents
#destshowSo, What Should I BeConcerned About?• Defamation• Antitrust• Privacy• Product Liability• Disclosure of Trade Secrets/Confidential Information
#destshowSo What Can I Do About It?• Protect Your Organization– Rely on LegislationThe information contained on this websitemerely provides details of ourfirm to persons who have shown interestin knowing more about us and isnot intended to solicit work or advertiseour capabilities in any manner.The information provided on this websiteis general in nature and shouldnot be used as a basis of decision-making without further professionaladvice. The third party site links are onlyprovided for ready reference ofthe users and _______Company.Neither controls their content norundertakes any responsibility regardingthem.
#destshowProtect Your Organization• For Members/Participants:– User Agreement• Do’s/Don’ts• Restriction on Use• Termination• Indemnification• Social Media PolicyFor samples, see www.socialmediagovernance.com
#destshowAmerican Red Cross SocialMedia Policy• Corporate vs. personal communications• Do’s and Don’t’s• Use Disclaimers• Be Accurate, Considerate and Transparent
#destshowAmerican Red Cross SocialMedia Policy• Don’t reveal confidential information• Respect copyright laws• Respect work commitments and upholdfundamental principles
#destshowProtect Your Organization• For Readers of Social Media:– Notice– Disclaimer
#destshowProtect Your Organization• Monitor and Enforce• Indemnification in Contracts• Insurance
#destshowNational Labor Relations Board• NLRB administers the NLRA– Files unfair labor practices complaints• Prosecutes companies with overly broadsocial media policies that restrict theiremployees’ ability to communicate witheach other to discuss work matters suchas (Protected Activity):
#destshow– Wages– Hours– Working conditions– Griping is unprotected activity:– Posting unprofessional remarks about theiremployers on their Facebook pages– Making disparaging, discriminatory ordefamatory comments about their superiorson their Blogs– Posting pictures of themselves on the Internetthat depict the company negatively
#destshowNational Labor Relations Board• Employers note:– Blanket prohibitions on electronic discussionsthat raise concerns over wages, hours, orother working conditions may violate theNLRA - protected concerted activity.
#destshowNational Labor Relations Board• Overly broad and unfair labor practice:• Social media policy that restrictsemployee’s right to react to or interact withco-workers’ posts about something at workthrough blogging, Internet posting,tweeting, “friending,” Facebookcommunications.
#destshowElectronic Signature Act• June 30, 2000, President Clinton signed intolaw the Electronic Records and Signatures inCommerce Act (or Electronic Signatures Act).• Went into effect on October 1, 2000 and giveselectronic contracts the same weight as thoseexecuted on paper. The act has some specificexemptions or preemptions, notably theprovision concerning student loans (section107, (b)(3)).
#destshowElectronic Signature Act• Although the act enables documents to besigned electronically, the option to do so liessolely with the consumer – they can still opt forpen to paper• The act specifically avoids stipulating anyapproved form of electronic signature, insteadleaving the method open to interpretation by themarketplace. Any number of methods areacceptable under the act. Methods includesimply pressing an I Accept button, digitalcertificates, smart cards and biometrics.
#destshowNational Labor Relations Board• Requiring employee to protect Employer’strade secrets and private and confidentialinformation without providing clearexamples of prohibited disclosures– Employees must understand discussion aboutworking conditions is permitted.
#destshowRely on Legislation• Communications Decency Act– Provides that “[n]o provider or user of aninteractive computer service shall be treatedas the publisher or speaker of any informationprovided by another information contentprovider.”
#destshow– ISP is immune from liability if content waswritten by a third party rather than the ISPitself– Excludes allegations involving the violation ofa criminal statute, the infringement ofintellectual property and a website’sinducement or encouragement of illegalactivity.– Only applies to claims under United States law.
#destshow• Online Copyright Infringement LiabilityLimitation Act (OCILLA), (Part of 1998Digital Millennium Copyright Act)– Intended as a shield for internet serviceproviders from monetary damages as a resultof copyright infringement by users.– Liabilities will be limited as long as it firstadopts and reasonably implements a policy ofaddressing infringement and terminatingaccounts of users who are found to be repeatinfringers.
#destshow• FTC Guidelines on Endorsements andTestimonials – December, 2009– Adds social networking blogs and bulletinboard postings to rules– Material connections must be disclosed whenit is not expected by audience (celebrities areexpected to be paid endorsers)– Disclosure is key
#destshow• Children’s Online Privacy Protection Act– Websites which collect information fromchildren under age 13– Need verifiable consent to collect personallyidentifiable information such as name,address, birth date
#destshowCase Law Developments• Defamation– Twitter/Courtney Love– Facebook/T&J Towing• Privacy Rights– Facebook/Civil, divorce and jurors– Twitter/Wikileaks
#destshowCase Law Developments• Labor and employment– Employer devices/City of Ontario, CA• Criminal– Cyberbullying/harassment