Meetings and the Law: Must Knows for the Digital Age

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"Meetings and
the Law: Must
Knows for the
Digital Age"
May 8, 2013
Rosemont, Illinois
©Copyright 2013. Barbara F. Dunn, Esq., Partner, Howe & Hutton, Ltd.,
Chicago, Washington DC and St. Louis, Missouri. All rights reserved under
both Pan-American and international copyright conventions. No
reproduction of any part may be made without the prior written consent of
the copyright holder.

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Barbara F. Dunn, Esq.
Partner
Howe & Hutton, Ltd

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Introduction
• Social media is all around us and it’s here
to stay
• Law is Playing “Catch Up” to Social Media

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Social Media Applications
• Social networking
– Third-Party Sites, e.g., Facebook, LinkedIn
– Your site – “White label”
*Control is key!

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Other Digital Age
Considerations
• Blogs
• Mobil APPS
• Electronic Signatures
• Online Privacy
• Virtual Events
• Video/Audiotaping of Speakers

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So, What Should I Be
Concerned About?
• Infringement Liability
– Trademarks
– Copyrights
– Patents

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So, What Should I Be
Concerned About?
• Defamation
• Antitrust
• Privacy
• Product Liability
• Disclosure of Trade Secrets
/Confidential Information

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So What Can I Do About It?
• Protect Your Organization
– Rely on Legislation
The information contained on this website
merely provides details of our
firm to persons who have shown interest
in knowing more about us and is
not intended to solicit work or advertise
our capabilities in any manner.
The information provided on this website
is general in nature and should
not be used as a basis of decision-
making without further professional
advice. The third party site links are only
provided for ready reference of
the users and _______Company.
Neither controls their content nor
undertakes any responsibility regarding
them.

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Protect Your Organization
• For Members/Participants:
– User Agreement
• Do’s/Don’ts
• Restriction on Use
• Termination
• Indemnification
• Social Media Policy
For samples, see www.socialmediagovernance.com

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American Red Cross Social
Media Policy
• Corporate vs. personal communications
• Do’s and Don’t’s
• Use Disclaimers
• Be Accurate, Considerate and Transparent

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American Red Cross Social
Media Policy
• Don’t reveal confidential information
• Respect copyright laws
• Respect work commitments and uphold
fundamental principles

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Protect Your Organization
• For Readers of Social Media:
– Notice
– Disclaimer

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Protect Your Organization
• Monitor and Enforce
• Indemnification in Contracts
• Insurance

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National Labor Relations Board
• NLRB administers the NLRA
– Files unfair labor practices complaints
• Prosecutes companies with overly broad
social media policies that restrict their
employees’ ability to communicate with
each other to discuss work matters such
as (Protected Activity):

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– Wages
– Hours
– Working conditions
– Griping is unprotected activity:
– Posting unprofessional remarks about their
employers on their Facebook pages
– Making disparaging, discriminatory or
defamatory comments about their superiors
on their Blogs
– Posting pictures of themselves on the Internet
that depict the company negatively

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National Labor Relations Board
• Employers note:
– Blanket prohibitions on electronic discussions
that raise concerns over wages, hours, or
other working conditions may violate the
NLRA - protected concerted activity.

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National Labor Relations Board
• Overly broad and unfair labor practice:
• Social media policy that restricts
employee’s right to react to or interact with
co-workers’ posts about something at work
through blogging, Internet posting,
tweeting, “friending,” Facebook
communications.

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Electronic Signature Act
• June 30, 2000, President Clinton signed into
law the Electronic Records and Signatures in
Commerce Act (or Electronic Signatures Act).
• Went into effect on October 1, 2000 and gives
electronic contracts the same weight as those
executed on paper. The act has some specific
exemptions or preemptions, notably the
provision concerning student loans (section
107, (b)(3)).

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Electronic Signature Act
• Although the act enables documents to be
signed electronically, the option to do so lies
solely with the consumer – they can still opt for
pen to paper
• The act specifically avoids stipulating any
'approved' form of electronic signature, instead
leaving the method open to interpretation by the
marketplace. Any number of methods are
acceptable under the act. Methods include
simply pressing an I Accept button, digital
certificates, smart cards and biometrics.

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National Labor Relations Board
• Requiring employee to protect Employer’s
trade secrets and private and confidential
information without providing clear
examples of prohibited disclosures
– Employees must understand discussion about
working conditions is permitted.

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Rely on Legislation
• Communications Decency Act
– Provides that “[n]o provider or user of an
interactive computer service shall be treated
as the publisher or speaker of any information
provided by another information content
provider.”

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– ISP is immune from liability if content was
written by a third party rather than the ISP
itself
– Excludes allegations involving the violation of
a criminal statute, the infringement of
intellectual property and a website’s
inducement or encouragement of illegal
activity.
– Only applies to claims under United States law.

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• Online Copyright Infringement Liability
Limitation Act (OCILLA), (Part of 1998
Digital Millennium Copyright Act)
– Intended as a shield for internet service
providers from monetary damages as a result
of copyright infringement by users.
– Liabilities will be limited as long as it first
adopts and reasonably implements a policy of
addressing infringement and terminating
accounts of users who are found to be repeat
infringers.

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• FTC Guidelines on Endorsements and
Testimonials – December, 2009
– Adds social networking blogs and bulletin
board postings to rules
– Material connections must be disclosed when
it is not expected by audience (celebrities are
expected to be paid endorsers)
– Disclosure is key

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• Children’s Online Privacy Protection Act
– Websites which collect information from
children under age 13
– Need verifiable consent to collect personally
identifiable information such as name,
address, birth date

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Case Law Developments
• Defamation
– Twitter/Courtney Love
– Facebook/T&J Towing
• Privacy Rights
– Facebook/Civil, divorce and jurors
– Twitter/Wikileaks

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Case Law Developments
• Labor and employment
– Employer devices/City of Ontario, CA
• Criminal
– Cyberbullying/harassment

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What Else is On Your Mind?
Questions? Email them to bfd@howehutton.com
©Copyright 2013. Barbara F. Dunn, Esq., Partner, Howe & Hutton, Ltd., Chicago,
Washington DC and St. Louis, Missouri. All rights reserved under both Pan-
American and international copyright conventions. No reproduction of any part
may be made without the prior written consent of the copyright holder.