Top 10 Social Media Liability Issues for PR Independent Consultants
“The Top 10 Social Media LiabilityIssues Every Independent Counselor Needs to Know” Deborah Gonzalez, Esq. February 23, 2012
Welcome/Overview• Introduction• Context• 10 Top Issues – Social Media – Liabilities – Best Practices• Q&A
Introductions Name, company, andshare a “truth” of social media.
ContextPR organizations must evolve content anddistribution models to be more social friendly. Thatmeans the content is getting shorter; there are linksto more sources, and their final forms are morevaried. The simple press release or data sheet nowbecomes a data source with embeddedtext, video, podcasts, etc. that can be pushed to orpulled from any type of device. Jody S. Canavan President, Launch International, Inc.
Top 10 Issues1. Transparency2. Currency3. Relevancy4. Media Relations5. Media Blogs6. Copyright infringement7. HIPPA8. FERPA9. Social Media Policy10. Freedom of Information/Speech
1. TransparencyYou MUST be who you say you are, and youMUST say who you are.Identification to sources, to clients, to media.Fraudulent Credentials on Social Media Profiles– FTC – False advertising.
2. CurrencyNot about $$$ - about timing – what ishappening NOW.Be careful not to rush fact verification though –inaccurate information can lead to Defamationand right of publicity claims, and other liabilities.
3. RelevancyWho needs to know vs who does not –confidentiality issues and TMI (too muchinformation).Disclosure and “on the record.” You ARE thesource.Disclosure of any affiliation or potential conflict ofinterest, or of “gifts” etc.
4. Media Relations“Friending” your media contact vs having aLinkedIn connection?Giving a “friend” an inside scoop?Do you or your employer own those LinkedIncontacts?
5. Media BlogsHow credible and accurate are your media blogs?Do you link vs. “cut and paste”?Watch for unfair juxtapositions, especially photosand text, or omission of explanatory facts.Do not disclose confidential facts.
6. Copyright InfringementDo not “cut and paste” from a social mediawebsite/profile.Ask for permission to use someone else’s content – creditthe source. Be careful about quotes and oral interviews.Make sure you are using the company’s trademarks andother IP based on their policy.Do not misuse your competitor’s IP (SEO keywords case)
7. HIPPAHealth Insurance Portability and Accountability Act of1996.• The Privacy Rule, gives consumers rights over their health information and sets rules and limits on who can look at and receive the health information. The Privacy Rule applies to all forms of individuals protected health information, whether electronic, written, or oral.• The Security Rule, a Federal law that protects health information in electronic form, requires entities covered by HIPAA to ensure that electronic protected health information is secure.
7. HIPPAHealth information can be used and shared:• For treatment and care coordination• To pay doctors and hospitals for patient health care and to help run their businesses• With family, relatives, friends, or others the patient identifies who are involved with their health care or their health care bills, unless the patient objects• To make sure doctors give good care and nursing homes are clean and safe• To protect the publics health, such as by reporting when the flu is in your area• To make required reports to the police, such as reporting gunshot wounds
8. FERPAFamily Educational Rights and Privacy Act of1974 (FERPA) “Buckley Amendment”Meant to protect student records – parents havesome control until student reaches 18 years ofage.
8. FERPAFERPA allows schools to disclose those records, without consent, tothe following parties or under the following conditions (34 CFR §99.31):• School officials with legitimate educational interest;• Other schools to which a student is transferring;• Specified officials for audit or evaluation purposes;• Appropriate parties in connection with financial aid to a student;• Organizations conducting certain studies for or on behalf of the school;• Accrediting organizations;• To comply with a judicial order or lawfully issued subpoena;• Appropriate officials in cases of health and safety emergencies; and• State and local authorities, within a juvenile justice system, pursuant to specific State law.
9. Social Media PolicyImportant to have – can protect the organizationfrom being liable for employee actions not doneon behalf of organization.Needs to be written and accessible to allemployees.Employees should be “trained” on the policyand sign a copy to be kept in HR.
9. Social Media PolicyComponents:• Identify benefits of social media• Address the risks of social media• Designate contact person(s) for people to consult with in regards to this policy (name, title, contact info including telephone, email and/or other communications contact)• Describe firm’s expectations, the fact that individuals are going to be responsible for their online activities
9. Social Media PolicyComponents:• Requirement of protection of client and firm confidences Address jurisdictional rules on advertising and disclosure to solicit new clients (especially for regulated industries)• Firm reserves the right to take disciplinary action against who violates – and must outline what those actions may be• Does the policy state that the company reserves the right to monitor use of social media by employees while the employee is using company equipment?
9. Social Media Policy“Employers should review their Internet andsocial media policies to determine whether theyare susceptible to an allegation that the policywould ‘reasonably tend to chill employees’ inthe exercise of their rights to discusswages, working conditions and unionization.”
10. Freedom of Information/SpeechBalancing act of 1st Amendment and PrivacySocial Media information is• Public (if it is openly accessible not a problem to use it)• Permanent (is the info coming from a “cache” or backup?)• Powerful (consequences)
10. Freedom of Information/SpeechFreedom of Information/Speech is not absolute – National security (Wikileaks, gov. monitoring??) – Personal safety – Public interestWhat kind of forum is your content on? – Government/public – Semi-private – Private
10. Freedom of Information/Speech7 Kinds of Speech Not Protected By FirstAmendment 1. Hate Speech 2. Inciting Violence 3. Supporting Terrorism 4. Public Employee Speech (whistle-blowers?) 5. Defamation 6. IP – Trade Secrets, NDA 7. True Threats
10. Freedom of Information/SpeechPaul Chambers, 27 yr old accountanttweeted, “”Crap! Robin Hood airport is closed.You’ve got a week and a bit to get your shittogether otherwise I’m blowing the airport skyhigh!!”He was convicted and fined. Judge JacquelineDavies said of the Tweet “It’s menacing in itscontent and obviously so. It could not be moreclear. Any ordinary person reading this would see itin that way and be alarmed.”