Jasmine   vegas conf final
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  • Welcome to my world. For those of you who heard Peter Shankman’s presentation yesterday I am sure that he spent quite some time telling everyone that social media is pretty easy just “Don’t be Stupid” Well, since my presentation today is focused on helping you not be stupid by making sure all the right players are involved in your social strategy, I thought I would be smart and start with my disclaimer. I may be in Marketing and Business Development but this is not advertising and, since I am not a lawyer, we definitely do not have an attorney client relationship and any results that you perceive from this presentation are not guaranteed  How many of you are from regulated industries? Pharma? Law? Financial Services? How many of you have internal social media plans How many of you have external social media plans? How many of you use social media?
  • Given that a quick look at the attendance list shows that almost everyone at this conference is in some form of marketing or sales role and you were all smart enough to come here, I am going to assume that this is not new news to you and you already understand how social helps both marketing and sales, or in my world, business development and they both have integral roles to play in connection with any social strategy
  • ALEX Broadly speaking, we ’re going to cover 2 topics: IP and Liability for web-based businesses and entrepreneurs – whether you are a startup company or just a blogger
  • This is
  • They may know all about The Facebook but what they do not know about business, the company culture and
  • For those of you who spent some of your traveling time yesterday reading the news, you might have seen this article. It talked about how a person who was tweeting for his company and had 42,500 took the company handle he was tweeting under @PhoneDog_Noah to @Noahkravitz and took all the companies followers with him when he switched jobs. What can the company do, not much except sue him. However, the company could have been prevented this simply by having good legal advice when they started their social strategy. If an attorney had reviewed twitter’s policies, they would have known this type of change is not only allowed but takes less than a minute to do. They could have allowed him to Tweet but under the company name and had his boss set up the account so he did not have access to make this change, they could have and should likely have had an employment contract in place that would prevent this.
  • Obviously the last item is just embarrasing to the company and is not going to result in any real damage, especially if it is actually true. I am from NY and live in MA and I have to say that if this had been said about Boston drivers that I might have had to buy a Chrysler (well, ok, I might not go that far) However, what if the tweet had been about a specific driver or had
  • PAUL Elements need to be verified Courtney Love sued for defamation for comments made on Twitter Tony LaRusso sued Twitter for comments made on Twitter 4 lawsuits against reviewers on Yelp Libel is written publication Slander is oral publication
  • ALEX FTC is concerned about transparent and honest endorsements
  • As many of you know, collection of data on people living in the EU is regulated much more strictly than in the US and it does not matter where your company is based. The law covers the EU citizen If you are collecting data on anyone and if you have an FB page or followers you are at some level or another a big thing you should do when you get back to work is talk to your legal team about COPPA – You want to make sure you are not violating this by collecting info on children that are under 13. The woman who presented the Harry Potter social media story yesterday was a lawyer and made some excellent points on this. One option is to have an age gate but, as she said, that would actually confirm the age of the person and once you definitively know their age it triggers other areas of this Act that you do not necessarilly want to deal with. There are changes coming to this and they are expected to make it even stricter. If nothing else you should make sure that if you think someone is to young you remove their posts and do not follow them back.
  • PAUL This slide is about OTHER PEOPLE ’S content © Infringement : While the Internet makes it easy to copy text and images, doing so will likely violate copyright law  Can result in both criminal and civil liability, including treble damages and attorney fees under the U.S. Copyright Act, 17 U.S.C. Section 101, et. Seq Right of Publicity : Posting photos or videos of people without their permission can also result in liability based on breach of privacy rights. The best practice is to obtain a release of likeness from each person in a photo or video before posting it, particularly if it could be argued that the content is for a commercial purpose or use Trademark : Unauthorized use of TMs on a social media site may lead to legal liability for trademark infringement, dilution or unfair competition. “fair use” is probably limited to stating the name in regular font. It is not permissible to use the trademarks of others to create a false impression of endorsement, affiliation or sponsorship.
  • ALEX This Slide is About YOUR content

Jasmine   vegas conf final Jasmine vegas conf final Presentation Transcript

  • Marketing+Sales+Communication +Legal = Social Strategy © 2012 Foley Hoag LLP. All Rights Reserved.
  • Attorney advertising.   Prior results do not guarantee a similar outcome. Any correspondence with this presenter does not constitute a attorney/client relationship. Copyright © 2012 Foley Hoag LLP. All rights reserved. We ’re serious.
    • For the majority of us, social media is just nothing more than a faster way to screw up in front of a larger number of people in a shorter amount of time.
    • - Peter Shankman
    • @ petershankman
    “ ”
  • Today’s Reality
    • Almost every company is focused on leveraging social media to sell
    • Social media can build your brand but it can also destroy it
    • Just because you see people engaged in certain conduct online or in social media does not mean it is legal
  • Platform Differences
    • Existing laws apply equally to online and offline conduct – platform does not matter
      • If you defame someone online, you can be liable in the same manner as if you defamed them in traditional media
      • Ditto for intellectual property infringement and misappropriation
  • Who Handles Social Media?
    • Internal Management
      • Law firms love to assign it to the junior, just out of college marketing team member “He/she is young they know all about ‘The Facebook’”
      • What they do not know about law, business savvy, company culture and overall strategy could kill your brand
    • External Management – PR Firm model
      • Have more time and they have more knowledge of social strategy than you may have internally
      • If you do not have a strong contract in place that covers everything, you could have a problem. Plus, how do they really know the company culture and day to day strategy nuances
  • This is not Rocket Science
  • Everyday News = Social Gaffes
  • Respondeat Superior Applies to Social!
    • If comments are made from a company’s Facebook or Twitter feed, be wary
    • Respondeat Superior
    • Latin: “ Let the master answer ”
    • A legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment.
  • Defamation
    • Slander and libel are false or malicious claims that may harm someone's reputation
      • Libel: a false, malicious statement published in mainstream media
      • Slander: a false, malicious spoken statement
  • What Happens in Vegas…
    • Can legally live forever on the internet in some cases
    • Note and understand differences in ownership rights and license grants under LinkedIn, Facebook and Twitter
      • LinkedIn: Users grant BROAD irrevocable license to copy, derivative works of, publish, commercialize, etc. in any way now known or in the future discovered... without any further consent, notice and/or compensation to you or to any third parties” with respect to all submitted content.
      • Twitter: Users free to take down content; no grant to Twitter.
      • Facebook: “For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”
  • External Social Media Policy
    • Generally no liability for statements made by “Commenters”
      • However from a brand perspective you may want to remove posts
    • Digital Millennium Copyright Act
      • Take-down policy should be explicit and followed faithfully
      • Register the DMCA Agent with the US Copyright Office
  • Transparency is Key
    • False Advertising and FTC Blogger Rules
      • Blogger must disclose any benefits received in exchange for promotion
      • Blogger and advertiser can be liable
    • Declare where you work
    • EU Consumer Data Issues
    • COPPA – Children’s Online Privacy Protection Act
    Do you need an Age Gate?
  • Intellectual Property Infringement
    • Use copyrighted works only with a proper license
      • Willful Infringement: triple damages and attorneys ’ fees
      • Generally no liability for re-tweeting a copyrighted image
      • You don’t need to register your © works with the US Copyright Office in order to enjoy copyright protection
    • Creative Commons ( www.creativecommons.org )
      • Images and Works are still subject to license terms
    • Right of Publicity: Even if you have a license to display an image, you may also need consent from the subject of the image
    • Unauthorized Use of Trademarks: References to company name versus use of TM or logo
  • Content Ownership
    • All employees and service providers should assign intellectual property rights to the Company by contract
    • You don’t need to register your © works with the US Copyright Office in order to enjoy copyright protection
  • Finally
    • If your social media policy, internal and external was not developed in connection with your legal department, go back and change that
    • If HR was not involved in drafting the policy they should be
      • Educate on how HR can enforce social media policy
      • Learn how and when social media can be used for recruiting research
    • All contracts with any and all social media companies, consultant’s, moonlighters, tweet generators etc. need to be reviewed by legal
      • Company owns and secures all accounts
      • Company owns all content
      • Ensure you rapidly lock out personnel who are fired or leave regardless of circumstances
  • © 2012 Foley Hoag LLP. All Rights Reserved . Jasmine Trillos-Decarie Director of Marketing & Business Development Foley Hoag LLP @JasmineDecarie [email_address] Thank you!