23 March 2010 Presentation by Jonathan I. Ezor on Legal and Other Risks of Social Media, at AITP-Long Island Event

1. Legal Implications of Social Media Networks Prof. Jonathan I. Ezor jezor@tourolaw.edu @ProfJonathan on Twitter Touro Law Center AITP-LI Panel March 23, 2010

2. E-mail, Blogs,Social Networking May Reveal More Than Desired Many companies and individuals have blogs Employees using Facebook, Twitter and other tools Personal and professional line may blur Texting and e-mails lack nuance, formality Current and future employers, clients may read Consequences can be embarrassing or worse Cannot prevent, only prohibit (but don’t) jezor@tourolaw.edu

3. http://shankman.com/be-careful-what-you-post/ Many of my peers and I feel this is inappropriate. We do not know the total millions of dollars FedEx Corporation pays Ketchum annually for the valuable and important work your company does for us around the globe. We are confident however, it is enough to expect a greater level of respect and awareness from someone in your position as a vice president at a major global player in your industry. A hazard of social networking is people will read what you write.

4. The visitor had recently learned that Tocquigny was wooing one of his company's competitors—by seeing a message that one of Tocquigny's employees had posted to Twitter. "It took me by surprise," says Tocquigny. "I realized that we needed to be more cautious about what we throw out there in to the universe."

5. The first salvo from the Twittersphere was fairly mild: a tweet that admonished her to "take a breath." But when that tweet rolled down the giant screen behind her, a portion of the audience laughed. Boyd - who couldn't see the tweet or the audience -- got rattled by the laughter and started reading even faster. Increasingly snarky tweets followed, then tweets protesting the snark, and soon the audience was paying more attention to the "tweet-off" on the screen than to the stream of Boyd's ideas.

7. Apple's code of silence extends to 140-character messages on the microblogging site Twitter. During an in-person meeting with Apple representatives in February, Wall Street Journal Deputy Managing Editor Alan Murray posted a short message to Twitter that announced he was using the device. The tweet was later removed from the site.

12. Changes Announced: October 5, 2009

13. Changes Effective: December 1, 200911 jezor@tourolaw.edu

15. Guides are the FTC’s interpretation of its false advertising laws

16. “Aid to complying with FTC Act”

17. FTC’s has the burden to prove that your advertising is actually false and deceptive

18. But, they reflect FTC’s intention, notice to the industry, and a position that is already being adopted by NAD12 jezor@tourolaw.edu

19. Example of Blogger “Endorsement” from Guides “A consumer who regularly purchases a particular brand of dog food decides one day to purchase a new, more expensive brand made by the same manufacturer. She writes in her personal blog that the change in diet has made her dog’s fur noticeably softer and shinier, and that in her opinion, the new food definitely is worth the extra money…. Assume now that the consumer joins a network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so. If she receives a free bag of the new dog food through this program, her positive review would be considered an endorsement under the Guides.” jezor@tourolaw.edu

21. May not have express/implied representation that would be deceptive if made by advertiser

22. Endorsement must accurately reflect endorser’s message

23. If endorser advertised to use the product, must have been bona fide user at time endorsement given, and ad can only run as long as endorser is userjezor@tourolaw.edu

25. Endorsers will be liable for positive claims made by endorser bloggers about the product

26. FTC suggests guidance and training of bloggers, monitoring paid bloggers to see/stop deceptive representations

27. Practice point: Google Alert, RSS feeds can aid in such monitoringjezor@tourolaw.edu

28. Disclosing Material Connections Crucial to Proper Compliance Not only issue of payment Bloggers who receive free review units/copies must disclose that and advertisers must monitor to ensure disclosure Advertiser staff participating in online discussion of products must disclose their affiliation Also relevant for statements about competitors’ products jezor@tourolaw.edu

30. Twitter particularly challenging given 140-character limitations on posts

31. Difficult to fit disclosure and endorsement into single tweet

32. Users may not know whether tweeter is professional or official marketer spokespersonjezor@tourolaw.edu

34. Pointed out that Guides are not enforceable statutes but aid to complying with FTC Act

35. “Social media marketing is here to stay, and we have enough respect for advertising on the Internet and the important role of the blogosphere as a marketplace for public opinion to hold it to the same standard we apply to advertising in any other medium.”

36. “Are there instances where it can be hard to distinguish advertising from editorial content? Yes. But that's true whether you're talking about Twitter or traditional media....[W]here the message is advertising, online disseminators have an obligation to ensure it is not misleading, just as marketers using traditional media do.”jezor@tourolaw.edu

37. Best Practices for Social Media In Business Clear guidelines for endorsers posting to Twitter, Facebook, LinkedIn etc. as well as blogs Whenever possible, short posts should link to longer blog articles to enable clear disclaimer Internal policies for social media use to manage who speaks “for” or “from” company Use available monitoring tools to watch both endorsements and other references to advertiser Assign central responsibility for managing social media presence/endorsements jezor@tourolaw.edu

38. Some Useful Social Network Monitoring Tools Google’s Advanced Search & Alerts Twitter’s Advanced Search SocialPing TwapperKeeper HootSuite & CoTweet Others at OneForty.com

39. Questions? Professor Jonathan I. EzorTel: 631-761-7119 e. jezor@tourolaw.edu