Lorraine Fleck - An Ounce of Prevention is Worth a Pound of Cure: Key Elements for Social Media Policies

An Ounce of Prevention isWorth a Pound of Cure: KeyElements for Social Media Policies Lorraine M. Fleck MyCharityConnects 2011 June 7, 2011 These slides do not constitute legal advice.

Overview1. Why do social media policies matter?2. What should a social media policy address?3. Can you use social media without being “anti-social”?

Why do social media policies matter?Social media has changed the speed and controlof marketing…Speed Your message can become viral. “Need for speed” – less time to formulate a reasoned and well-considered response. Your audience can respond instantaneously, self-organize and react quickly.

Why do social media policies matter?Social media has changed the speed and controlof marketing…Control Your audience is often linked to a large network (not necessarily of your choosing). Your audience may be able to seize control of/twist your message.

Why do social media policies matter?Social media has changed the speed and controlof marketing…Control Interest groups can use your social media infrastructure against your charity and/or brand.

Why do social media policies matter?Social media policies can assist in protecting: Reputation; Privacy; Physical security; and Intellectual property (IP) and proprietary information.

Why do social media policies matter?ReputationYours Key to developing trust in any organization. Especially important for charities and non- profits; no trust = no money!

Why do social media policies matter?ReputationOthers Social media can be a conduit for defamation and/or depreciating the goodwill associated with a brand.

Why do social media policies matter?Privacy Hot button issue; relates to your charity’s reputation. While the Personal Information Protection and Electronic Documents Act (PIPEDA) often does not apply to non-profits and charities, PIPEDA may apply in specific circumstances.

Why do social media policies matter?Physical security Relates to privacy. Compromised if a person’s physical location is discovered (e.g. kidnapping, robbery, threats). “Digital exhaust” can reveal physical location. E.g. pleaserobme.com, “Creepy” app

pleaserobme.com

Creepy app

Why do social media policies matter?Intellectual property (IP) Need to protect your charity or non-profit’s IP and proprietary info. Significant legal consequences for unauthorized use of other’s IP and proprietary info; reputational damage could occur as well.

What are the sources of risk? User generated risks. Employee generated risks. Other sources of risks.

What are the sources of risk?User generated risks Feedback from users, solicited by the advertiser (e.g. post your own video/photos at the request of or on a platform provided by the advertiser). Content posted by users that violates the IP rights and/or discloses the confidential or personal information of others.

What are the sources of risk?User generated risks Unexpected user backlash. Users hijacking your social media account/site for an unintended purpose.

What are the sources of risk?Employee generated risks Employers may be liable for representations made in the “scope of employment”. Statements made on an employee’s personal time/account may be attributed to employer. Employees making comments about employer’s products and/or services without disclosing relationship.

What are the sources of risk?Other risks Your organization may not exercise full control over content. ISP liability: Your organization could be liable if it hosts the online content. Violating social media network’s terms of use could result in your charity’s account being closed and/or your charity being banned.

What should a social media policy address?For charities and non-profits, generally: Privacy; Intellectual property (IP); Employee’s internal and external use; Defamation; Contests; and Spam.

PrivacyPrivacy laws are breached when a user’s personal information is collected, used or disclosed without the appropriate consent. Why is the personal information being collected? Will that information be only used internally or visible outside your charity (e.g. on a social media network)?

Privacy Is there the risk that a user will post someone else’s personal information? Is there adequate security and restricted access to the personal information?Best Practices Consent is key! E.g. do not disclose a donor’s identity without express written consent.

Intellectual PropertyCopyright Right to reproduce content and stop others from reproducing content. Applies to the Internet! Means that you must get others permission to use their content (e.g. articles, photos, logos) unless your activity falls within an exception to infringement.

Intellectual propertyCopyright Exceptions to copyright infringement (“fair dealing”) under specific circumstances: 1. Research/private study. 2. Criticism/review 3. News reporting. Exceptions do not apply to advertising.

Intellectual propertyCopyright Parody, while an infringement exception in the U.S., is currently NOT an exception in Canada; may change.

Intellectual propertyCopyright General copyright term = Life of the author + End of the calendar year in which the author died + 50 years after the year the author died. Usually, person who creates the content is the owner. Exceptions: employees, photographers.

Intellectual propertyCopyright Moral rights (right of author attribution and integrity of copyrighted work) can prevent you from altering content. Ownership cannot be transferred, but can be waived.

Intellectual propertyCopyright and User Generated Content (UGC) Because of copyright and moral rights, if you are using UGC, you must obtain the right to use/modify the content. Risk that UGC may not be truly “user generated”, and may violate other’s copyright.

Intellectual propertyCopyrightBest Practices Remember that the same rules offline apply online. Remember that U.S. laws may not apply.

Intellectual propertyCopyrightBest Practices Get written permission to use content unless your activity falls within an infringement exception. Moral rights may restrict what you can do with an image, even if an infringement exception applies.

Intellectual propertyCopyrightBest Practices If dealing with UGC (e.g. in a contest), obtain the rights to use/modify the content by: 1. Written transfer of ownership with moral rights waiver; OR 2. Perpetual, royalty free license with moral rights waiver.

Intellectual propertyCopyrightBest Practices Ensure that users warrant in term of use that content does not violate copyright, and will indemnify your organization if copyright is violated.

Intellectual propertyTrade-marks Can be unregistered or registered. The owner of a registered trade-mark has the exclusive right to use that mark in respect of specific goods and/or services. One cannot “use” a trade-mark in a manner that depreciates its value or goodwill (e.g. posting disparaging/defamatory comments).

Intellectual propertyTrade-marks Depending on the circumstances, displaying a trade-mark in social media may constitute “use”, meaning you could get sued for trade- mark infringement, passing off, or depreciation of goodwill. Copyright can also exist in logos. Using logos without permission can also be copyright infringement.

Intellectual propertyTrade-marksBest Practices If you are launching a campaign with new trade-marks, make sure the trade-marks are available to use. Obtain trade-mark registration(s) for long- term marks.

Intellectual propertyTrade-marksBest Practices Ensure that other’s marks are not “used” and disparaging/defamatory comments are not posted regarding other’s brands. See if you can register your trade-marks on the major social media platforms (e.g. Facebook, Twitter, MySpace) to avoid unauthorized accounts.

Employees Non-profits and charities could be liable for employee’s statements if made during scope of employment. Risk can come from employees use at and outside of work. In the event of a PR problem, overzealous employees trying to help out could end up unintentionally making a bad situation worse.

Employees Disgruntled current or former employees can defame your organization, causing damage. Employees may post comments about employer’s products and/or services without disclosing relationship. Employees may release confidential information without thinking of the consequences (e.g. Twitpics of visiting celebrities).

EmployeesBest Practices Have a social media policy that applies to everyone – from the mailroom to the CEO. Have marketing and legal work together to draft the policy – no silos! Acknowledge that employees may use social media outside of the office, but make them aware of the risks to them and your non- profit/charity that could arise from such use.

EmployeesBest Practices Acknowledge that employees may use social media outside of the office, but make them aware of the risks to them and your non- profit/charity that could arise from such use. Authorize a limited number of users to post on your organization’s behalf, who cannot respond to complaints unless authorized.

EmployeesBest Practices Educate authorized users and all employees on what they can and cannot post. Have a list of social media user names and passwords in the event an employee leaves. Restrict access to that list on a “need to know” basis.

EmployeesBest Practices Use the “mother” rule – if you wouldn’t want your mother to see the content – don’t post!

DefamationWhat is defamation? Oral or written words which tend to lower a person in the estimation of others or cause a person to be shunned, avoided or exposed to hatred, contempt or ridicule.

Defamation What is required for a successful defamation claim? 1. The words are defamatory; 2. The defendant communicated the words to third persons (e.g. publication); AND 3. The plaintiff is the one defamed. Damages can be significant e.g. $125,000 damages in Barrick Gold Corp. v. Lopehandia.

Defamation What defences are there to a defamation claim? 1. Truth. 2. Fair comment: applies only if the statement is an honestly held expression of opinion on matters of public interest and has some factual basis.

Defamation What defences are there to a defamation claim? 3. Responsible communication: statements/ allegations in the public interest even if not true. Require some diligence to verify.

Defamation4. Innocent disseminator: Merely distribute content and exercise little, if any, editorial control. Defendant must show that:  Unaware of defamatory statement.  No circumstances which ought to have resulted in knowledge of defamatory statement.  Not negligent by remaining ignorant of defamation.

Defamation Host will still have some obligations and potential liability even if insufficient control e.g. Carter v. BC Federation of Foster Parents, 2006 BCCA.

DefamationBest Practices If you don’t have anything nice to post… don’t post!

Contests The same laws that apply offline apply online. To avoid an illegal lottery – need to remove either chance or consideration (payment) from the contest. Need a skill testing question or no purchase option. Develop contest rules to protect your organization.

Contests Disclose any material facts that would affect chance of winning in contest rules. Do not unduly delay distributing prizes.

ContestsBest Practices Use “mini rules”. Rules should be readily accessible (no complicated website to navigate, purchase additional software, or visit additional website). Specify who the contest is open to, otherwise could be open to everyone in the world.

ContestsBest Practices Specify time zone applicable to any deadline in the rules. Anticipate children entering your contest. Have a parent/guardian click an “I Agree” button on the entry form to consent to the contest rules on child’s behalf.

ContestsBest Practices Anticipate computer glitches: contest rules allow for cancellation/contest modification. Privacy and disclosure of winner’s personal info.

ContestsBest Practices Anticipate children entering your contest. Have a parent/guardian click an “I Agree” button on the entry form to consent to the contest rules on child’s behalf. Assign copyright and waive moral rights in UGC via “I Agree” button.

ContestsBest Practices Have rules prohibit unauthorized third party IP use in UGC (e.g. music, photos, logos). If you receive an unauthorized IP use complaint, immediately remove offending content.

ContestsBest Practices If you are offering a contest via a social media platform, check to see if they have rules regulating such contests (e.g. Facebook, YouTube, Twitter).

Spam New Fighting Internet and Wireless Spam Act (FISA) may apply to messages sent over social media networks such as Facebook and Twitter. Under FISA, “commercial electronic messages” must identify the sender and provide contact information, as well as provide an unsubscribe mechanism.

Spam “Commercial electronic messages” capture activity that may be performed without expectation of profit. Significant penalties: Fine up to $1 million for an individual; up to $10 million for corporations.

SpamBest Practices Meet the requirements for express or implied consent.

SpamBest Practices Express consent 1. Provide the purpose for which consent is sought. 2. Identify the person seeking the consent, and if different, the person on whose behalf consent is sought. 3. Provide any other prescribed info.

SpamBest Practices Implied consent 1. Existing business/ non-business relationship between sender and recipient, or 2. Recipient has conspicuously published their address, or has disclosed it to the sender and…

SpamBest Practices Implied consent 2. Recipient has conspicuously published their address, or has disclosed it to the sender and… i. Has not indicated that they do not wish to receive commercial messages, and ii. Message is relevant to recipient’s business.

Is it possible to use social media without being “anti-social”? YES! But need to have in place to limit liability and mitigate risk. Two pronged approach: 1. Legal measures 2. Non-legal measures.

Using social media without being anti-socialLegal measures Comprehensive social media policy and terms of use (TOU) if operating your own network.  Specify permitted users and uses.  Clearly prohibit the posting of problematic content, such as personal information (e.g. donor’s identity), content that violates IP, defamatory content, other confidential info.

Using social media without being anti-socialLegal measures Comprehensive social media policy and TOU.  Consent for collection/use of personal information and other privacy issues.  Use measures to ensure that user agrees to TOU to ensure enforceability (e.g. click-wrap agreements).

Using social media without being anti-socialLegal measures Comprehensive social media policy and TOU.  Obtain copyright assignments/licenses plus moral rights waiver for UGC.  Avoid disclosing physical location except where unavoidable.

Using social media without being anti-socialLegal measures Using an existing social media platform?  Comply with social media platform’s TOU.

Using social media without being anti-socialNon-legal measures Fall into two categories: technical and administrative.

Using social media without being anti-socialNon-legal measures1. Technical  Verify user identity.  Control access to the social media network (where possible).  Control access to user’s personal information.  Content filters.

Using social media without being anti-socialNon-legal measures2. Administrative  Respond to complaints about content.  Respond to users posting problematic content.  Monitor the site  May lead to increased liability (law unclear).  But if do not monitor, could hurt your charity’s image and brand. Uncertain whether lack of monitoring avoids liability.

Addendum… As requested at the presentation, here is as link to a website listing various social media policies: http://socialmediagovernance.com/policies.php. While resources are usually limited, it is recommended that any policies drafted based on those at the above link be reviewed by a qualified lawyer for compliance with relevant laws.

An Ounce of Prevention isWorth a Pound of Cure: KeyElements for Social Media Policies Lorraine M. Fleck MyCharityConnects 2011 June 7, 2011 These slides do not constitute legal advice.

Lorraine Fleck - An Ounce of Prevention is Worth a Pound of Cure: Key Elements for Social Media Policies

by CanadaHelps / MyCharityConnects on Jun 07, 2011

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Lorraine Fleck - An Ounce of Prevention is Worth a Pound of Cure: Key Elements for Social Media Policies Presentation Transcript

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