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Risk management on facebook

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  • 1. Jean-Paul Rains, H.B. Comm
    1
    Risk Management on Facebook
  • 2. Social Media Biography
    2
    Laurentian University
    JP Laurentian
    ICQ 1998
    Windows Messenger 2002
    Facebook 2006
    Twitter 2009
    Foursquare 2010
  • 3. Evolution of sharing information
    3
    2000, we shared printed pictures
    2004, we e-mailed digital pictures
    2006, we shared pictures on Myspace, MSN
    2008, we upload to facebook and tag our friends
    More than 400 million active users on Facebook
    Average facebook user creates 70 pieces of content each month
  • 4. Risk Management on Facebook
    4
    Social Media Plan
    Where we were headed
    Find us on Facebook
    The rules of engagement
    Facebook in the news
    “I lost my job because of facebook”
    User Generated Content Implications
    “Mind if I take a picture of you?”
    Risk Management Strategies
    Recommendations
  • 5. Social Media Process
    5
    Establish Goals
    Engage current students and alumni
    Appeal to prospective students
    Engage and appeal through content
    High level of interaction
    Produce content for members
    Corporate content
    User generated content
  • 6. User Generated Content Implications
    6
  • 7. The User
    7
    “Users want and need to socialize, and they act in privacy-risking ways because of it. We cannot and should not beat these social urges out of people; we cannot and should not stop people from acting on them. We can and should help them understand the consequences of their socializing, make available safer ways to do it, and protect them from sociality hijackers.” - Associate Professor, New York Law School, James Grimmelmanin the Iowa State Law Review
    http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann
  • 8. The User
    8
    84% of young adults 18-24 thought people should have their permission before posting photos/videos.
    “policy discussions should acknowledge that the current business environment ... sometimes encourages young adults to release personal data in order to enjoy social inclusion...” – research from the University of California, Berkeley and the University of Pennsylvania
    Article: http://www.theglobeandmail.com/news/technology/personal-tech/tech-savvy-generations-care-about-privacy-study-finds/article1536603/?cmpid=rss1
  • 9. “Game on: wait, you know our house rules, right?”
    9
    Facebook Terms of Services
  • 10. Facebook Terms of Services
    10
    Where you can find it…
  • 11. Facebook Terms of Services
    11
    “Please keep in mind that the owner of a photo determines the privacy of that photo. If other users are able to view photos you are tagged in, then it is because the owner of the photos has most likely set the privacy of the photo album so that everyone can see the photos in it. While there is the option to block users from viewing the tagged photos section on your own profile, there is no way to restrict the visibility of a photo that you are not the owner of.”
    Source: http://www.facebook.com/terms.php
  • 12. Facebook Terms of Services
    12
  • 13. Facebook Terms of Services
    13
    Electronic Frontier Foundation www.eff.org
    Evil Interfaces: “Act of creating deliberately confusing jargon and user interfaces which trick your users into sharing more info about themselves than they really want to” – Lee Tien, State of the Net Survey.
    Expectation mismatch due to their first privacy, to their very public. “…Users jumped in when water was cold, now the water is boiling and some (users) are getting cooked” – Tien
    http://www.eff.org/deeplinks/2010/04/facebooks-evil-interfaces
  • 14. Facebook Terms of Services
    14
    “So, while I hope we can maintain our optimism about the potential social benefits to be found in the virtual worlds that feature user-generated content, we should be aware that these are two separate phenomena… the future of this promising partnership is fraught with uncertainty.” - Steven Hetcher, Professor of Law, Vanderbilt University Law School
    http://heinonline.org/HOL/Page?handle=hein.journals/vanep10&div=34&g_sent=1#871
  • 15. “What do you mean you can see my photos?”
    15
    Facebook in the News
  • 16. Facebook in the News
    16
    Examples from some of the first Facebook cases in the courtroom
    “Canadian courts have considered web-based networking sites such as Facebook and MySpace pages to be ‘documents’….In fact, a recent Ontario decision has held that it is now incumbent on lawyers to specifically raise the issue of Facebook profiles with their clients and explain that any relevant material that is posted on such sites will need to be produced in litigation….” - Richard J. BortnickJuris Doctorate of Villanova University School of Law
    Article:http://cyberinquirer.com/?p=207
    Case cited: http://www.canlii.org/en/on/onsc/doc/2009/2009canlii6838/2009canlii6838.pdf
  • 17. Facebook in the News
    17
    Royal & Sun Insurance Co. of Canada asked a judge to order that a client preserve the contents and photos on her Facebook page, and then hand them over, including the parts of apage was set to “private” that could only be viewed by 67 approved friends.
    Mr. Justice David Price denied the insurer's request, ruling that Royal & Sun had failed to prove the page included relevant material
    Article Facebook pokes limits of personal-injury law
    Case cited: http://www.canlii.org/en/on/onsc/doc/2009/2009canlii58971/2009canlii58971.html
  • 18. Facebook in the News
    18
    Contrastingly… Last year a Canadian court ruled that a defendant in a motor vehicle action could compel Facebook evidence from a plaintiff even though he had implemented privacy settings restricting access to his profile. In this case the court deemed the photos to be relevant to the procedure.
    “A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly available profile,” a justice for the Superior Court of Justice for Ontario ruled. “Any invasion of privacy is minimal and is outweighed by the defendant's need to have the photographs in order to assess the case.”
    Article: http://www.law360.com/articles/147130
    Case cited http://www.lawsonlaw.ca/leduc-v-roman-facebookRady, J. in Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.).
  • 19. Facebook in the News
    19
    In 2008 an Ontario University was the subject of a Facebook related lawsuit
    A student created a group, discussed assignments and was then failed from the class and recommended to be expelled
    Lawsuit was based around legal representation
    Source: http://network.nationalpost.com/NP/blogs/posted/archive/2008/03/06/university-student-faces-expulsion-for-facebook-study-group.aspx
  • 20. Facebook in the News
    20
    Teachers suspended from workplace for photos on facebook http://www.abc.net.au/news/stories/2010/04/20/2877654.htm?section=justin
    High school students suspended for photos http://www.startribune.com/local/west/13549646.html
    Student expelled for facebook status http://www.yppo.com/2010/04/04/the-status-update-that-got-a-student-expelled-from-school/
    Prof placed on leave for status update www.usatoday.com/news/education/2010-03-02-facebook-professors_N.htm
  • 21. Facebook in the News
    21
    In a survey of 350 US employers by Vault.com
    44% of employers use social-networking sites to examine the profiles of job candidates
    39% have looked up the profile of a current employee
  • 22. “My friends won’t mind if I upload this”
    22
    User Generated Content
  • 23. User Generated Content
    23
    Are pages protected by the Charter of Rights and Freedoms?
    Do we really need photo consent?
    Where does copyright factor in?
    Proposed changes to Facebook’sTerms of Service
  • 24. Rights and Freedoms
    24
    Canadian Charter of Rights and Freedoms – Fundamental Freedoms
    1.2 (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
    This law applies only as it does not supersede privacy laws.
    Currently, not aware of any facebook lawsuits specifically related to photo consent
  • 25. Photo Consent Case
    25
    In one of the most well-known Canadian photo consent cases, a female in a public area was the subject of a published photo. She was not aware that the photo was taken or that the photo was published, until a friend informed her.
    She then sued the publisher for invasion of privacy, and won at every level.
    Source: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii817/1998canlii817.html
  • 26. Photo Consent Case
    26
    “if the purpose of the right to privacy...is based on...the control each person has over his or her identity... this control implies a personal choice." "(there is) an infringement of the person's right to (privacy)...as soon as the image is published without consent and enables the person to be identified." - Supreme Court of Canada
    Source: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii817/1998canlii817.html
  • 27. Photo Consent Case
    27
    The Court then went on to reject a body of law that exists in this area in the United States. That US law states that the publication of a photo without consent is permitted if it serves a "socially useful" purpose.
    The Court also rejected the notion that the right to publish a photograph ought to be given precedence over the individual's right to remain private due to the logistical difficulties in obtaining consent
    Source: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii817/1998canlii817.html
  • 28. Photo Consent Case
    28
    "… the right to protection of her image is more important than the (photographer's) right to publish the photograph...without first obtaining her permission." - Supreme Court of Canada
    Source: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii817/1998canlii817.html
  • 29. Where does Copyright come in?
    29
    The copyright act liability for infringement
    “35: Where a person infringes copyright, the person is liable to pay such damages to the owner of the copyright as the owner has suffered due to the infringement and, in addition to those damages, such part of the profits that the infringer has made from the infringement and that were not taken into account in calculating the damages as the court considers just.”
    Source: http://laws.justice.gc.ca/en/C-42/FullText.html
  • 30. Proposed Changes
    30
    Privacy Commissioner of Canada
    From February 2009 recommendations
    “Recommendation 22: Non-users should not be able to be tagged in photographs posted to the site. Recommendation 24: Photos should not be taggable by default – users should have the ability to select whether or not photos may be tagged…”
    http://www.priv.gc.ca/information/pub/sub_comp_200901_e.cfm#toc5d
  • 31. Proposed Changes
    31
    When can we expect these changes?
    The changes were recommended in February 2009 based on data from 2008
    Facebook announced changes in August 2009 with implementation over 12 months
    Turnaround time is approximately 2 years
    Source http://www.facebook.com/press/releases.php?p=118816
  • 32. Pressure from Users
    32
    “We are going to be providing options for users who want simplistic bands of privacy that they can choose from and I think we will see that in the next couple of weeks.”
    - Tim Sparapani, Facebook’s chief of public policy, said in a radio interview (May 18th)
    Yesterday, Facebook announced the simplification of the opt-out procedures
    http://mashable.com/2010/05/18/facebook-simple-privacy/
    http://mashable.com/2010/05/27/facebook-privacy-video/
  • 33. “Risk is like fire: If controlled it will help you ; if uncontrolled it will rise up and destroy you.”
    33
    Risk Management
  • 34. Risk Management
    34
    Strategies to control risk:
    Internal Social Media Guidelines
    External Facebook Policy
    Disclaimer
    Photo Consent for user generated content
  • 35. Where are we?
    35
    Very few Canadian institutions have an external policy
    Some US-based institutions have policy
    Leaders like Ohio State, University of Florida, Stanford University and UCLA to name a few
    Twitter: “Risk Mgmt policies thanks @davidshipleyhttp://bit.ly/bPYPwW ”
  • 36. Ohio State – Internal Guidelines
    36
  • 37. University of Florida
    37
  • 38. StanfordUniversity
    38
  • 39. UCLA
    39
  • 40. Summary
    40
    Although facebook and social networking sites in general pose risk to our institutions there are measures that can reduce your risk
    We are currently developing our external and internal social media policies at Laurentian University
  • 41. Disclaimer
    41
    The information on this paper is not intended to constitute legal advice. This paper should not be used as a substitute for legal advice from a licensed lawyer in your state, province or country. Please take this information as an opinion based on research and take it upon yourselves to initiate an internal investigation within your institution.
  • 42. Contact Information
    42
    If you have any questions or comments, please contact me through my facebook profile or e-mail
    www.facebook.com/jplaurentian
    www.twitter.com/jp_laurentian
    http://ca.linkedin.com/in/jprains
    jl_rains@laurentian.ca
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