2013-05-02 Online Social Media Risks


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Online social media, including social networks, blogs, and wikis, bring new opportunities for associations to communicate their messages and advance their respective missions. However, using online social media without first considering the potential legal risks can expose the unwary association to potential liability. Although the laws and regulations governing online social media are diverse and still under development, associations should understand the likely and known legal traps that can snare them when using online social media. This seminar will help associations navigate the legal pitfalls of using online social media by considering the key legal issues and providing guidance that associations can use to minimize the related liability risks. This guidance will address employee guidelines, user agreements, disclaimers, licenses, and other risk allocation strategies. Related topics that also will be discussed include employment issues; defamation or other accusations of bad behavior; copyright and trademark protection and infringement; and privacy concerns.

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2013-05-02 Online Social Media Risks

  1. 1. 1© 2008 Venable LLP“Online Social Media Risks”Legal Considerations for Associations“RAFFA LEARNING COMMUNITYA.J. Zottola III, Esq., PartnerVenable LLPAJZottola@venable.comMay 2, 2013
  2. 2. 2© 2013 Venable LLPSocial Media – Everywhere
  3. 3. 3© 2013 Venable LLPLaws – EvolvingPrivacyAntitrustTaxRegulatoryCriminalEthicsCommon LawLabor &EmploymentIP
  4. 4. 4© 2013 Venable LLP Legal issues  Same as before but new platforms– Entity use of social media– Pathways to Legal Liability or Risk• Defamation, Intellectual Property, Trade Secret,Advertising, Privacy, and Promotions– Employee use of social media• Attribution to entity, corporate identity,discrimination/harassment• Develop and implement a social media policy– Business vs. personal use– On vs. off the job conduct 2 key concepts: external versus internalOverview
  5. 5. 5Defamation Restatement (Second) of Torts Sec. 559– Act of harming reputation of another through falsestatements to a third party. Occurs when you have(a) false or defamatory statement concerninganother person, (b) communication or publication toat third party, and (c) harm to third party. Possible with social media publication, display,or posting.– “Publisher Liability”• Party who publishes the defamatory statement– “Distributor Liability”• Party who repeats the defamatory statement withknowledge or reason to know its contents Comments made by others can be attributed tothe organization© 2013 Venable LLP
  6. 6. 6Defamation How to Avoid– Federal Communications Decency Act of 1996 - § 230• Pattern behavior. Essentially, there is differenttreatment online.• Only possible with information or content published orprovided by another person.• Immunity for interactive computer service if (a)voluntary, good faith action to restrict access or (b)enablement of technical means to restrict access.Won’t be treated as publisher or distributor.– Beware informal nature of social media networks.– Utilize disclaimers and terms of use– Enforce a take down policy– Refrain from commenting on third-party posts– Remain mindful of trade secrets and confidentiality– Consider available screening capabilities for third-partyhosts© 2013 Venable LLP
  7. 7. 7Trademark Trademarks are source identifiers Trademark Issues Are Always Possible WhenUsing Third Party Marks– Don’t assume “Fair Use” because of non-profit or tax exempt status.– Seek permission– Be especially careful in commercialcontext– Don’t allow use in account names– Avoid using third party trademarks insearch terms, domain names, or usernames© 2013 Venable LLP
  8. 8. 8Copyright Copyright protects creative expression Social media is essentially the type of media that isbased on communication and interaction betweenpersons online. Social Media is Primarily About the Content Be Mindful of Copyright Ownership.– Who owns work on social media?– Work-made-for-hire doctrine, written assignments ofrights Pattern Behavior to take advantage of Sec. 512(c)Safe Harbor Provision– No financial benefit from infringing activity– Not awareness of infringing activity– Take down policy© 2013 Venable LLP
  9. 9. 9Trade Secret Information kept secret to create advantage orwhich has value from not being known generally Unauthorized disclosure increases with socialmedia usage.– Larger audience– More opportunities for leakage throughaccounts, mobile devices, and communication Are social media contacts a trade secret? Is the account employer owned? Who owns thesocial media account? Consider commitments or protections in vendorcontracts and whether social media is covered.© 2013 Venable LLP
  10. 10. 10IP Protection When Protecting Own Intellectual PropertyRights– Monitor for misuse– Balance IP protection with reputationprotection• Many times, it’s an innocent infringer• Use clear placement of appropriatesymbols – ©, ®, ™– Enforce with policy statements, DMCA,demand letters, and legal proceedings– Consider available registrations, such asfor trademark, domain name, or user name© 2013 Venable LLP
  11. 11. 11Misleading Advertising Advertising or promotion that misrepresents nature, characteristic,or origin of good or service All product or service claims on social media are consideredadvertising Third-Party Statements/Deceptive Endorsements in PromotionalActivities. Potential for risk.– Statement(s) that consumers believe reflects opinion ofspeaker rather than advertiser– Potential for blogger and entity liability– Entity doesn’t have to request endorsement FTC Guidelines – Testimonials/Commenting– Specifically include social media and network marketing– Applies when (1) “endorsement” and (2) “connection” Requires Disclosure of Connection– Whether the speaker is (1) acting independently (blogger) or (2)acting on behalf of the advertiser (or its agent).© 2013 Venable LLP
  12. 12. 12Privacy Protection of Personal Privacy, i.e., personallyidentifiable information Increased Scrutiny on Online Data Collection throughmobile apps and online social networks Limitations on Collection and Publishing ofPersonally Identifiable Information– Consider use of privacy notices describing datacollection– You Must have a Privacy Notice with a Mobile app– Remember disclosure and consent requirements– Be mindful of privacy policies of third-partyplatforms– Be consistent with general web site policy ifpotential for overlapping data use© 2013 Venable LLP
  13. 13. 13© 2013 Venable LLP Limit individuals who have authority to speak onentity’s behalf & then prohibit all others from claiming orimplying authorization to speak on entity’s behalf– Create process for gaining authorization to speak onentity’s behalf Prohibit unauthorized individuals from using entity’sintellectual property, logos, trademarks, and copyrightsin any way or manner Prohibit employees and members from using entity’sname in any online identity (e.g., username, screenname)Limit Apparent Authority And ProtectCorporate Identity
  14. 14. 14© 2013 Venable LLP Balance – benefits vs. risk – on an informed basis Remember: Attribution to entity – actual or apparent authority Loss of IP and/or confidential information Ownership– Eagle v. Morgan (Oct. 4, 2012)(claim that employer hijacked LinkedInaccount) Discrimination and/or harassment claims– Recruiting/hiring• Use vs. not use. If use  systematic and controllable manner.Also internal vs. external use. If internal  non-decision-maker. If external  FCRA.• Consider non-solicitation obligations– Workplace environment– References (also potential for defamation) Employee discipline/termination– Law in flux -- hot topic– Proceed with caution before taking any disciplinary action againstemployees for violations of social media or internet use policies(especially based on personal use)– Also proactively review existing policies carefully and considerwhether revisions should be made to minimize legal riskEmployee Use Of Social Media – Risks
  15. 15. 15© 2013 Venable LLP NLRA applies to ALL employers involved in interstate commerce except airlines,railroads, agriculture, and government Non-supervisory employees have §7 rights to engage in concerted activity– Employees can get together to discuss workplace activity related to their interests asemployees NLRB litigation– Complaint against American Medical Response – Fall 2010• 2 alleged violations: Unlawfully terminating employee for posting negative remarksabout her boss on Facebook; and unlawfully prohibiting employees from makingnegative comments about the company or discussing the company at all withoutthe company’s permission (internet use policy)– 3 NLRB advice memoranda – 7/19/11• JT’s Porch Saloon & Eatery, Ltd.; Martin House; Wal-Mart– Administrative judge  firing for Facebook posts to be unlawful – Hispanics United ofBuffalo – 9/2/11– Administrative judge firing for Facebook posts to be lawful – Knauz BMW – 9/30/12– More NLRB advice memorandums – 10/13/11 – Schulte, Roth & Zabel and 10/19/2012 –Cox Communications– Board decision unlawful social media policy –DIRECTV – 1/25/13 Lessons– Activity needs to be concerted to be protected, but knowing whether activity isconcerted can be hard– Matters of mutual concern (not individual gripes) likely protected, even if communicatedvia social media and/or seen by non-employees– Some leeway for impulsive/intemperate behavior– Caution – both as to any policy and any employee disciplineConsider Labor Law Concerns
  16. 16. 16Considerations for DevelopingSocial Media Policy Don’t Ignore 3rd Social Media Network Operator Policies Network Operator Policies Provide Limited Protection,Although They Offer Some Enforcement Mechanisms Involve Multi-disciplinary Team (HR, Legal, Marketing, andExecutive) How will Entity Manage its Presence (Internally &Externally) Try to Maintain Consistent Approach Across Platforms &Networks Consider Level of Monitoring Consider Shelf-Life of Archived Content How Will You Communicate Policy© 2010 Venable LLP
  17. 17. 17© 2013 Venable LLPQuestions?