Social Media And The Law 2 23 10Presentation Transcript
Welcome to the Chicagoland Chamber of Commerce Emerging Trends in Business: Social Media and The Law
Emerging Litigation Michael Parks
Social Media Litigation Has Arrived and the Threat Is Growing
Recent Study Finds Companies Becoming Aware
18% of companies investigated exposure of confidential information via video or audio media sharing site
17% investigated exposure of confidential information via posting to a social networking site
13% investigated exposure of confidential information via a blog or message board post
Source: Outbound E-Mail & Data Loss Prevention 2009, Proofpoint, Inc. http//www.proofpoint.com
Source: Outbound E-Mail & Data Loss Prevention 2009, Proofpoint, Inc. http//www.proofpoint.com Recent Study Identifies Potential Litigation Exposure
Social Media Poses Unique Legal Risks
Access / Anyone can use it!
Lack of content control
Scope of audience reach
The Information is distributed and maintained by an entity that did not create it
Involves all different types of media
Invasion of Privacy
Intellectual Property Claims
Some Recent Examples
LaRussa v. Twitter
Horizon Group Management
Intellect Art Media
Law & Tritt
Salon Professional Academy
LaRussa v. Twitter, et al.
“ Lost 2 out of 3, but we made it out of Chicago without one drunk driving incident or dead pitcher... I’d call that an I-55 series.”
Horizon Group Mgt., LLC v. Bonnen
Trade Libel Claim
Case dismissed without written opinion
Intellect Art Media v. Milewski
Swiss Finance Academy Summer College Courses
Milewski post says SFA is:
“ 100% Bait & Switch Scam”
“ Its [sic] all a joke and a scam that needs to be stopped”
130 out of 150 would ask for refund because “they got worked”
Court finds opinion about “quality of services” is protected speech
“ Subjective expressions of consumer dissatisfaction are not actionable”
Interactive website submits site owners to jurisdiction
Section 230 (c)(1) of Communications Decency Act protects site owner
Source: 2009 Slip Op 51912 (NY Sup. Ct.)
Low and Tritt v. The Pizza Kitchen, et al. Pizza kitchen owner then posts on Twitter Pizza kitchen owner Facebook posts: “ Don’t EVER use Lowandtritt marketing firm.” “ Don’t EVER use Lowandtritt marketing firm.” “ Crooks-stolen email list and have tried to pressure me by threat of lawsuit to sign a license agreement to use their marketing materials.”
Employment Claims Harassment Domelights.com
Blog hosted by police sergeant
Postings include racial slurs
City sued because workers accessed blog from worksite and no action taken in response to complaints
Welcome to the Chicagoland Chamber of Commerce Managing Social Media in the Workplace
Managing Social Media in the Workplace How should you approach social media in the workplace? No restrictions No access Acceptable Use Tailor your Acceptable Use Policy to your unique workplace.
Managing Social Media in the Workplace Elements of an Acceptable Use Policy:
Notice to employees that you monitor computer use
Protect confidential and proprietary information
Identify yourself, be transparent, be honest
Play nice. Report abuse
Use common sense and good judgment
Don’t forget why you’re here …. TO WORK
Managing Social Media in the Workplace Should you “friend” an employee? Should you Tweet about your workplace? Should you require employees to disclose Facebook, blogs, Twitter?
Managing Social Media in the Workplace … I’ve worked Tirelessly 2 not cause trouble, BUT I will now have 2 turn 2 my revenge side (GOD’S REVENGE SIDE) 2 teach da world a lesson of stepping on GOD. I thank GOD 4 pot 2 calm down my frustration n worries or else I will go beserk n shoot everyone …. Prepare to See Crazy Trang in public eye soon IN UR TELEVISION n other news vehicles … - Nguyen v. Starbucks Coffee Corp., 2009 U.S. Dist. LEXIS 113461 (N.D.Cal. Dec.7, 2009) Should you monitor your employees on MySpace, Twitter, etc.?
Managing Social Media in the Workplace Social Media and the On-Boarding Process Do you recruit through social media? Do you investigate an applicant’s Facebook, Twitter, etc.? Have you ever made a hiring decision based on what you learned via social media? Is all this legal?
Managing Social Media in the Workplace Labor unions are on Twitter, Facebook Is it lawful for you to follow? Is it working? Does anyone care?
Managing Social Media in the Workplace The Fundamentals Never Change
Dignity and Respect
Open Lines of Communication
Fairness and Consistency
Brand Protection Thomas Williams
Brand Protection in Social Media
Proactive Steps in Brand Protection
Applying Lessons from the Domain Name Wars
Effective Enforcement Strategies
I. Proactive Steps in Brand Protection
A three-step process…….
Step #1: Identify your Trademarks and Brands
“ Trademark” is a legal term of art:
Other: logo, shape, color, sound, scent
“ Brand” = “Trademark” + “promise” of something extra (quality, prestige, etc.)
All “Brands” are “Trademarks,” but not all “Trademarks” are “Brands.”
Step #2: Register your Brands as User Names on Social Networking sites
Reserve “your” Brands ASAP
Block second-comers from taking your Brands
Step #3: Register Your Brands as Trademarks/Service Marks in USPTO
Why register your Brands as marks?
Preserves your exclusive right to manage your Brand identity
Provides legal presumptions:
Trademark registrations should be given weight by Facebook ®, etc., in analyzing requests for removal of infringing content
II. Applying Lessons from the Domain Name Wars
1990’s Domain Name Land Rush:
Brand owners lagged behind savvy internet users
“ Wild West” environment
Registrars’ solutions were inadequate
Lessons for Social Media?
Treat social network names like domain names: online source identifiers
Move quickly: Reserve social network user names a part of major product launches
Assume that a “squatter” will grab what you do not reserve
Assume that the courts will struggle with disputes
What will be the next “Facebook ®,” “Twitter®,” or “YouTube®”?
Alternatively, what will be the next “.info” or “.us”?
III. Effective Enforcement Strategies
Has your company been involved in a social media “naming” dispute?
There is no such thing as a “non-infringed” trademark
You cannot stop all online abuses
Counterfeiters/Imposters selling fakes
Defamatory statements about your products
“ Fan site” misuse
Your Tools of Enforcement:
Invoke host’s dispute policies and take-down procedures:
Facebook® Dispute Policy Page
Twitter® Dispute Policy Page
Send “Cease-and-Desist” Demand Letters?
“ Reputation Management”: Beware of online backlash!
Tony La Russa v. Twitter (imposter user name, settlement)
Note: Expect limited legal recourse against network providers
Courts are reluctant to impose liability on hosts
Legal claims are typically against squatter
Litigation, while costliest option, would provide broadest remedies (injunction, damages)
Be proactive in protecting your online identity.
Treat social network names like domain names.
Avoid the courts—when possible—in social network name disputes.
Contact Information For additional information, please contact: Thomas M. Williams Howrey LLP 321 N. Clark St. Suite 3400 Chicago, Illinois 60654 312.846.5620 [email_address]
Corporate Considerations Robert Kamensky, Esq.
Adult Use of Internet 2005 - 2009
Growth in Social Media Use 2005 - 2009
Adult Social Media Site Use
Impact of Social Media Source: Digital Marketing Factbook
Social Media Approach
“ This concept of trying to control or block [social media usage], is not going to work. There's going to be a divide, with some companies that shun public social networks and are fearful of using them, and some who embrace it and take the risk.”
- Facebook, Twitter become business tools, but CIOs remain wary. NetworkWorld January 10, 2010
Social Media Approach IBM -The Impact of Corporate Culture on Enterprise Social Media Corporate Culture VS Social Media Corporate Culture + Social Media = = FAILURE SUCCESS
Policy Comparisons IBM ESPN Encouraged Cautious Tolerated No Policy CISCO FINRA Baker Razorfish
Encouraged IBM –Sales Organization
Encouraged Services - Razorfish If you are not using Social Influence Marketing in your job, please get started. Razorfish encourages employees to adopt Social Influence Marketing – whether you’re on Twitter, running your own work blog, posting comments on someone else’s blog, uploading presentations on community sites like SlideShare, or otherwise participating in the world of social media.
Cautious ESPN - Broadcasting
Cautious FINRA – Regulated Industries
Cautious Baker & Daniels - Service Industry Baker & Daniels Remember the internet is not anonymous, nor does it forget. There is no clear line between your work and personal life Avoid Hazardous materials Don’t promote other brands with the firm’s brand Keep confidentiality Don’t pad your own stats Do not pat yourself on the back Do not qualify your work Do not approve recommendations or testimonials Do not promote successes Do not return fire Do not offer or appear to offer legal advice