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Social Media: Legal & Business Issues
 

Social Media: Legal & Business Issues

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This is a 90 minute presentation on Social Media and current legal and business issues related to it.

This is a 90 minute presentation on Social Media and current legal and business issues related to it.

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  • Sandy Masters: The green circles are companies that were bought by other companies (e.g. Blogger bought by Google, etc.).  The X’s are no longer in business.  What is most interesting about the graphic is that when the graphic was made around 2006, the “Big 3” did not even make the list!  Here is the complete graphic with proper attribution: http://www.flickr.com/photos/stabilo-boss/101793494/
  • Highly interactive technology tools that leverage the human desire to interact with others Many to Many Used to be One to Many (email) Now: LinkedIn,FaceBook, Twitter, YouTube More efficient way to share info Free, easy, fun We become content producers Feeds creativity urge Competitive # connections, friends, followers New way for organizations to communicate with employees, patients, partners, and stakeholders Online communities that allow people to get information, opinions, solutions, and ratings directly from each other rather than from organizations Users spend more time on social media sites than email since February 2009 Facebook posted 69% / Twitter posted 45% increase in year-over-year gains in user activity Global traffic to social networking sites totaled 313,690 million visitors.   The total minutes spent on social networks monthly saw a more than 100% increase over the same time last year, Average time per person spent on social networks to over 6 hours per month. 46% of American adult Internet users use a social media site like Facebook, LinkedIn or MySpace 65% of American teen Internet users use social media
  • Managing a conversation Medical advice vs. medical information Engaging e-patients Equipped, enabled, empowered, and engaged in their health care decisions Provide feedback to healthcare provider Convergence with personal health records As the similarities between online patient communities (http://www.patientslikeme.com and http://curetogether.com) and PHRs begins to blur, will PHR information from providers be shared with online communities with the appropriate privacy settings so that the user can decide what to share? Health 2.0 User-generated aspects of Web2.0 within health care Not directly interacting with the mainstream health care system a) search, b) communities, c) tools for individual and group consumer use Social media for providers Few health care professionals see the value in social networking with other physicians, or they are not convinced that the benefits are worth the time. Although well over 90% of physicians use the Internet for continuing education, medical reference and e-mail with colleagues, taking theleap into online communities is less common. Article: Social Media in Health Care: Barriers and Future Trends
  • Personal business network – job security – activate it when looking for new job or career change Reconnect – Paul Keeler Connect after network / meet someone – invite them to connect Connections / connections of connections Home page Vanity URL Profile page Who viewed your profile last
  • Launched February 2004 More than 400 million active users 50% of active users log on to Facebook daily Average user has 130 friends People spend > 500 billion minutes/ month on FB Average user creates 70 pieces of content / month More than 25 billion pieces of content (web links, news stories, blog posts, notes, photo albums, etc.) shared each month. Users create profiles / photos / lists of personal interests / contact info / other personal information. Communicating through private or public messages or a chat feature. Users create / join interest groups and "like pages" “ Like” buttons spreading across internet User set their own privacy settings and choose who can see what parts of their profile. Need 25 fans to get vanity URL
  • Demo JTJ FB Site: Started FB 2 years ago Old classmates, work friends Show Brett FB – garage door thread Show privacy settings Set up “rings” of security Vanity URL – go to “username” Chat O/s Friend requests – who do you accept?
  • Get cell phone picof me in front of screen, Send MMS text to Twitpic: “Social Media presentaton at Azshrm” ADHD: Attention deficit hyperactivity disorder. ADHD is a problem with inattentiveness, over-activity, impulsivity, or a combination. For these problems to be diagnosed as ADHD, they must be out of the normal range for the child's age and development
  • Giant conversation, access people’s thoughts on topics Show Home Show Profile – link to blog Show Followers – follow someone back Show Following Hash tags # - do search Twellow – show non-mutuals Background – discuss 1600x1200 size
  • Make sure you give proper attribution for the content (e.g. Slide 32 – I believe the material comes from the IIABA – ACT Social Media Policy for Agencies.) 
  • Company policies Review existing company policies Are there controls and procedures for monitoring? Company agreements Antifraud provisions of the Securities Exchange Act of 1934 Regulation FD (Fair Disclosure) SEC Release on Use of Company Web Sites Rule 14a-17 Stock exchange requirements
  • FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising Advertiser liability for False or unsubstantiated statements made through endorsements For failure to fully disclose material connection between them and the endorser that might materially affect the weight or credibility of the endorsement (e.g., advertiser providing endorser with free products, employee of advertiser, etc.) Endorser liability for statements made in the course of their endorsements (e.g., bloggers)
  • Potential violation of state or federal discrimination laws Why? Because you’re “asking” questions that you wouldn’t otherwise ask during an interview. Are you basing your decision to hire, or not hire, someone based on what you see (even inadvertently)? Fair Credit Reporting Act? Violate terms of service of website? Federal Computer Fraud and Abuse Act? Federal Stored Communications Act? Common law privacy claims?
  • Ask: Is the information I am going to learn a valid predictor of job performance? Consider modifying written authorizations for background checks to include reference to internet searches Consider researching after a conditional job offer is made If you find something negative, give the applicant time to correct or explain
  • When employee’s comments are protected by law: Federal and state anti-discrimination laws, including wage and hour laws NLRA: Section 7 Protects employees’ right to form, join and assist labor organizations, engage in collective bargaining, and to engage in other concerted activities for mutual aid and protection Constitutional laws applicable to state/federal employees (1st and 4th Amendments) Other laws that may protect employee postings/blogging Electronic Communications Privacy Act of 1986 (18 USC § 2510 et seq.) State laws regarding “lifestyle statutes” (not OR or WA but “yes” in California)

Social Media: Legal & Business Issues Social Media: Legal & Business Issues Presentation Transcript

  • Social Media: Legal & Business Issues May 14, 2010 Jeff Johnson, Marsh, Inc. 3131 E Camelback Road, Suite 400, Phoenix, AZ 85016 602-337-6226 ~ [email_address] Arizona Society for Healthcare Risk Management Quarterly Meeting Casa Grande, AZ
    • 495 connections
    174 friends 2,600 followers 495, 174, 2,600 Social Media Revolution
    • Web 2.0 & Social Media
    • The Big Three: LinkedIn, Facebook, Twitter
    • Use of Social Media: Legal & Business Considerations
    • Social Website Dangers for Unwary Employers
    • What’s Next?
  • Web 2.0 & Social Media
  • Web 2.0 & Social Media Overwhelm WHY RIDE THE WAVE?
  • Self-Directed Learning & Knowledge Management
    • In the knowledge economy learning is work and your work is learning
    • “ An organization’s ability to learn and translate that learning into action is the ultimate competitive business advantage” –Jack Welch
    • “ Knowledge has become the key economic resource and the dominant–and perhaps even the only–source of competitive advantage .” –Peter Drucker
  • Collaboration Transparency Open Source Connection From Wikipedia: File:Web 2.0 Map.svg Sharing Communication
  •  
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  • Web 2.0 Today
    • Apps that facilitate info sharing, interoperability, user-centered design and collaboration on the world wide web.
    • Cumulative changes in the way developers and end users use the web.
    Transforming people from content consumers to content producers. Social Networking: LinkedIn, FaceBook Micro-blogging: Twitter Blogs: Technorati, WordPress, Blogger, Blogspot Photos & Images: Flickr, Picasa RSS & Newsreaders, GoogleReader Wikis: Wikipedia Podcasts: Podcast.com, Videos: Audacity, YouTube, Hulu Avatars: Second Life Bookmark storage: Digg, Diigo, Delicious, StumbleUpon Browsers: FireFox, Safari, Chrome Video Conferencing: Skype Presentation sharing: Slideshare Social Platform: Ning Polling: Survey Monkey, PollDaddy Synchronous webinar tools: GoToMeeting, Eluminate Course Management Systems: Moodle E-Learning development tools: Camtasia, Articulate,
    • Social Media:
    • Highly interactive technology tools
    • Many-to-Many
    • Online communities
    • Free, easy, fun
    • Content producers
    • New, more efficient way to communicate
    Transforming people from content consumers to content producers. Click here for Slideshare on “Community The Real Power of Social Media”
  • Strong Ties - Dunbar's number
    • 150
    • Theoretical cognitive limit of number of people we can maintain stable social relationships with
    • Relationships where one knows who each person is, and how each person relates to every other person
  • Weak Ties Have Strength
  • Blogs
    • “ Web-log"
    • Commentary, descriptions of events, graphics, and video.
    • Entries in reverse-chronological order
    • Standard source of news and info
    • 77 Million+ Americans visit blogs
    • 346 Million blog readers worldwide
    • How to blog: Wordpress, Blogger
    • Who to follow: Technorati
    • How to organize: Google Reader, RSS
    • 19 Blogs You Should Bookmark Right Now
  • Social Media and Healthcare
    • Medical advice vs. medical information
    • Engaging e-patients
    • Convergence with personal health records
    • Health 2.0
    • Social media for providers
    • Hospital Social Media Network List
      • US Hospitals that use social networking tools, by state
      • Social media resources for health care professionals
    • Article: Social Media in Health Care: Barriers and Future Trends
  • Social Media Resources
    • Social Media Clubs Local Face to Face meetings
    • SmartBrief on Social Media E-zine
    • Social Media Academy Online Master Certificate Classes
    • Socialnomics Social Media Blog
  • The Big Three: LinkedIn, FaceBook, Twitter Portions of this section were contributed by Sandra Masters
  •  
  • LinkedIn Facts & Issues
    • FACTS:
    • Business-oriented social networking site
    • Launched in May 2003
    • 65 million registered users
    • More than 200 countries / territories worldwide
    • A new member joins LinkedIn every second
    • 50% of members are outside the U.S.
    • ISSUES:
    • Recommendations – how should companies use them for applicants
    • Authentication of users
    • To be or not to be a LION
  •  
  • Facebook Facts & Issues
    • FACTS:
    • Launched February 2004
    • More than 400 million active users
    • 50% of active users log on to Facebook daily
    • Average user has 130 friends
    • People spend > 500 billion minutes / month on FB
    • More than 25 billion pieces of content
    • “ Like” buttons spreading across internet
    • User set their own privacy settings and choose who can see what parts of their profile.
    • Need 25 fans to get vanity URL
    • ISSUES:
    • User privacy
    • Intellectual property rights
    • Terms of use
    • Data mining
    • Inability to voluntarily terminate accounts
  •  
  • Twitter Facts Fascinating real-time insight into hot topics of the day Huge conversation on any topic imaginable
  • Twitter Issues
    • ISSUES:
    • Breaking news stories by eyewitnesses
    • Freedom of speech
    • Tweet ups
    • Twitter imposters
    • Character limits for handle and profile name
    • Delay in updating – hard to find accounts
    • Self-help customer service
    • Will hashtags prompt keyword-like trademark infringement lawsuits?
  • …the Ultimate Convergent Tool
  •  
  • Twitter spawns more applications: Twirl & Tweetdeck Twollow Tweetchat Power Twitter & Tweetie Tweetlater TwitPic TwitterBerry & Tiny Twitter Twitterfon & Twitterfic Your Twitter Karma My Tweeple TwitterFeed Twitterpacks Qwitter Tweetstalk Twitterati Twitterfall Website that explains and gives ratings to all these twitter apps: www.twittereye.com
  •  
  •  
  • Password Tips
    • Include caps, numbers and symbols
      • JtjMarsh25!
    • Change password regularly
    • keypass.info
      • Free password generator
    • Evernote
      • Free native encryption
    • Firefox master password
  • Use of Social Media: Legal and Business Considerations Portions of this section were contributed by Melissa Krasnow, Dorsey & Whitney LLP
    • Privacy
    • Errors and omissions
    • Security
    • Protecting proprietary information
    • Transparency
    • Lawsuits
        • Social Media Lawsuits: Your Posts and Pics Can Screw You by Jeff Louis
        • Workforce Darwinism by Adam Singer
    • Social Media involvement by your company
    • Start by asking these questions:
    • Will your company participate?
    • Which employees have an appropriate business use for social media?
    • Can only certain employees use these tools during business hours?
    • To what extent will you monitor employee use, and how?
    • How would you prefer an employee mention your company on their personal sites?
    • You will need a clear company philosophy defining your company’s attitudes toward social networking.
    • You should also make it clear whether employees are allowed to identify themselves as representatives of the company on their personal social networks.
    Social Media Issues:
  • Company Social Media Policies
    • Personal liability for content
    • Disclaimers are advisable, but not a shield from liability
    • Do not disclose company confidential or financial information
    • Follow established company guidelines, policies and codes (e.g., code of conduct / ethics, etc.)
    • Often not publicly available
    • Some common elements of social media policies:
      • Identify yourself and make it clear when you are speaking on behalf of or about the company
      • Employee versus individual capacity ( e.g., are any employees executive officers?)
      • Liability
        • Seek advice from the legal department or management when necessary ( e.g. , permission to comment if the content is work related)
    • Information that can be disclosed
    • Information should be accurate
  • Should I have a Social Media policy?
    • ABC Company
    • Example Social Media Policy
    • No access to social/web networking sites or blogs using company-provided equipment (computers, cell phones, etc.)
      • Consider blocking access to the well-known accounts
      • Who is blocked now at work? YouTube?
    • Employees may not access social/web networking sites and may not blog during work hours
    • Employees who access social/web networking sites or who blog during non-work hours, using non-work computers, may not:
      • disclose or discuss confidential or proprietary information (include definition)
      • disclose or discuss information regarding the company’s clients or business partners, or details of a particular client engagement
      • use the company’s trademarks, logo, and any copyright protected material of the county in the blog, posting, etc.
      • promote competitors’ goods, services, products, etc.
    • Employees may not :
      • Post any material or content that is discriminatory, harassing, etc. or Engage in any activity that reflects or may reflect negatively on the company, its affiliates, employees, or clients/customers
    • Employees who access social/web networking sites or who blog during non-work hours, using non-work computers, must :
      • Remain respectful of the company, its products/services and clients/customers, affiliates, vendors and suppliers, competitors (and competitors’ products and services).
    • Employees must :
      • Make clear in any post or blog that the views and opinions they express about work-related matters:
        • Are their own,
        • Have not been reviewed or approved by their employer, and
        • Do not necessarily represent the views and opinions of their employer.
    • Employees should expect that any information created, transmitted, downloaded, exchanged or discussed on social networking sites and/or blogs may be accessed by the company at any time without prior notice
    • Consider your company’s culture, and history with technology
    • Do you have policies in place already that address this issue?
      • Anti-harassment
      • Non-disparagement
      • No divulging company secrets/proprietary information
      • Computer use policy
    • Does your company have an intranet or other company-sponsored forum where employees may post comments?
    • Social Media Policy Database
    • Kaiser example SM Policy
  • Corporate and Securities Law Requirements
    • Company agreements
    • Antifraud provisions of the Securities Exchange Act of 1934
    • Regulation Fair Disclosure
    • SEC Release on Use of Company Web Sites
    • Rule 14a-17
    • Stock exchange requirements
  • Federal Trade Commission Developments
    • FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising
      • Advertiser liability for
        • False or unsubstantiated statements made through endorsements
        • For failure to fully disclose material connection between them and the endorser that might materially affect the weight or credibility of the endorsement
      • Endorser liability for statements made in the course of their endorsements (e.g., bloggers)
  • Other Regulators of Social Media
    • Financial Industry Regulatory Authority
      • Guidance on Blogs and Social Networking Web Sites
    • U.S. Food and Drug Administration
      • Public Hearing on Promotion of FDA-Regulated Medical Products Using the Internet and Social Media Tools
  • Overall Recommendations: Company Use of Social Media
    • Register key trademarks as Twitter usernames and Facebook vanity URLs
    • Monitor social media
    • Consider all disciplines / areas affected by social media
    • Review company procedures and revise or establish new policies as needed
    • Make sure company policies are consistent and integrated
    • Train marketing, customer service, human resources, investor relations, employees and others who handle company’s social media
  • Social Website Dangers for Unwary Employers Portions of this section were contributed by Tamara E. Russell, Barran Liebman LLP
  • What if you saw these photos of an applicant on the internet?
  • Reasons why an employer may want to monitor employee internet activity
    • Possible liability for:
      • torts committed by employee
        • defamation of company, employees, constituents
        • Negligence
      • harassment or discrimination
    • Possible intellectual property infringement
    • Possible dissemination of trade secrets or confidential or proprietary information
  • Legal risks of doing a background check on the internet
    • Potential violation of state or federal discrimination laws
    • Fair Credit Reporting Act
    • Violate terms of service of website
    • Federal Computer Fraud and Abuse Act
    • Federal Stored Communications Act
    • Common law privacy claims
  • If you MUST use the internet to research a candidate
    • Ask: Is the information I am going to learn a valid predictor of job performance?
    • Consider modifying written authorizations for background checks to include reference to internet searches
    • Consider researching after a conditional job offer is made
    • Update your policies:
    • Specify who will do the internet background checks
    • Carefully consider criteria about how and when to use the internet in evaluating applicants
    • Specify that no one is authorized to use the internet to research a co-worker, applicant, former worker, etc.
    • Clarify and identify who is authorized to give referrals, if any
    • Should you be wary of the LinkedIn “recommendation”?
  • Your employee posted a bad, bad thing on the internet, now what?
  • Social Website Dangers for Unwary Employers
    • Pietrylo v. Hillstone Restaurant Group (2009)
    • Plaintiff created a group on MySpace called “The Spec-Tator,” where employees – by invitation only – could engage in “shit talking” about the restaurant and its managers
    • Site contained ethnic slurs and derogatory comments about guests and managers and discussions about drug use and sexual acts
    • A non-manager employee joined and showed content to a manager, who used non-manager employee’s account name and password to access the account and show it to other managers
    • Plaintiff and another co-worker were fired
    • Plaintiff claimed the termination violated federal and state statutes that prohibit “knowing” and “unauthorized access” to stored electronic information; violations of privacy rights; and unlawful termination
    • Tried to jury in June 2009
    • Verdict for plaintiff – violation of Federal Stored Communications Act
    • Damages for plaintiff were nominal, but plaintiff’s counsel applied for and will likely receive close to $125,000 in attorney fees
  • Discharging employees for internet postings
    • “ Safe ” cases:
    • When the content of the posting
      • Violates the law
      • Discloses trade secrets or other company confidential or proprietary information
    • When the content was posted during work hours, and violates the company’s policy on use of the internet
    • “ More Difficult ” cases:
    • When the employee says disparaging, but not unlawful, things about:
      • The company or it products or services
      • Co-workers, the work environment, etc.
  • Discharging employees for internet postings – when not to discharge
    • When employee’s comments are protected by law:
      • Federal and state anti-discrimination laws, including wage and hour laws
      • NLRA: Section 7
      • Constitutional laws applicable to state/federal employees (1st and 4th Amendments)
      • Other laws that may protect employee postings/blogging:
        • Electronic Communications Privacy Act of 1986 (18 USC § 2510 et seq.)
        • State laws regarding “lifestyle statutes”
  • Insurance coverages for Social Media loss exposures
    • Insurance Coverages:
      • Professional liability policy
      • Information Security policy
      • Tech Errors & Omissions policy
      • General liability policy
      • Umbrella / Excess liability policy
      • Employment Practices Liability Insurance
      • Directors & Officers Liability Insurance
  • What’s Next
    • Next Generation Mobile Devices - iPad
    • More Apps
    • Geolocation based services - Foursquare
    • Video calling on cell phones
  • Closing:
    • Challenge:
      • LinkedIn: build profile, get connections, join groups
      • Facebook: check privacy settings, have fun with it
      • Twitter: try a search, set up basic account, tweet, follow people
      • Review your company’s Social Media policy – is there one?
    • Any questions?
    • Review handout
    • Marsh (3/2/10) webinar replay: The New World of Social Media: Business and Legal Risks
    • Go to Slideshare.net to view this presentation:
      • http://www.slideshare.net/jtjmarsh/social-media-legal-business-issues
  • www.marsh.com The information contained in this presentation is based on sources we believe reliable, but we do not guarantee its accuracy. This information provides only a general overview of subjects covered, is not intended to be taken as advice regarding any individual situation or as legal, tax, or accounting advice and should not be relied upon as such. Recipients of this presentation / publication should consult their own insurance, legal, and other advisors regarding specific coverage and other issues.