Creating digital media               policies          Presented by Rodika Tollefson        MCDM Digital Media Law & Polic...
Background   Project scope:       Key Peninsula News digital media policies   Deliverables:       Social media; online p...
Social media policyStaff personal use of social media   Issues:        -Protecting company reputation        -NLRA concer...
Social media policyOrganizational use of social media   Issues:        -Account access and control        -Organizational...
Social media policyRecommendations on policy design   Avoid legalese, excessive jargon etc         -Use plain language  ...
EULA/TOSFocus issues   User/member submitted content   Passive user considerations   Legal issues regarding policy upda...
EULA/TOSRecommended policy sections   Personal liability (e.g. copyrights, libel)   User-submitted content guidelines  ...
Online privacy policyMain issues   Information collection and sharing       -lawmakers/FTC concern of better regulation o...
Online privacy policyPolicy sections: recommendations   What information is gathered   What is done with the information...
Sources consulted/considered   Journalism organizations’ policies      (Reuters,    Scripps etc)   Court cases and NLRB ...
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Digital media policy presentation

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Issues to consider when designing a social media policy, privacy policy and EULA

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  • Key Pen News nonprofit monthly community paper; part-time paid staff and volunteers incl webmaster and writers; overseen by volunteer board. Online content currently limited to dozen stories max/mo, e-version of paper, games, some videos, photo gallery. Goal to grow digital presence and revenue. Potential incl user-generated content incl. event submissions; breaking news blog; guest bloggers. New: online comments, users do or don’t have to register, what happens to info.
  • -Companies often have anti-disparagement policies and others to help protect reputation. Should be expanded to disparaging anyone in online forums when representing organization; educate staff about the blurring lines between personal and professional. More challenging to address with volunteers.-In one complaint to NLRB, the employer was alleged to have a policy prohibiting “carrying of tales, gossip, and discussion regarding company business or employees.” Likewise, employer policies prohibiting disparagement of the company or executives are also issues in many cases. While there is significant precedent dealing with non-disparagement rules and employee loyalty in other contexts, application of the precedent to social media is clearly a major developing issue. (from the US Chamber report, see sources slide)-Laws protect employees who engage in concerting activities, such as discussing/criticizing conditions of employment/wages/supervisors etc. (Nat’l Labor Relations Act). Does not apply to independent contractors. -Not protected if doesn’t relate to concerted: ie Arizona Daily Star firing reporter tweeting offensive remarks (“Stay homicidal, Tucson” etc) Lee Enterprises, Inc. d/b/a Arizona Daily Star, Case No. 28-CA-23267, NLRB Advice Memorandum-Prohibiting behavior such as harassment, online bullying, discriminatory statements etc; plus general guidance about inflammatory comments (ie in response to a scathing comment)-General guidance for writers on avoiding appearance of bias on topics/stories they typically cover, as well as libel/slander, same principles as reporting in print — refer to existing ethics policy and HR manual.-Risk of confidential/proprietary information release (operational) as well as premature release of upcoming story topics, breaking news etc.; also prohibiting discussion of any ongoing litigation, investigative stories, ongoing company transactions, sensitive information related to clients etc.-Copyright issues tie in with contributors’ contracts and staff contracts (nonexclusive perpetual use vs. work-for-hire)-Premature information release corporate example: Apple iPhone G4 (http://www.pcworld.com.offcampus.lib.washington.edu/article/194590/apples_iphone_4g_debacle_a_timeline.html)-Good source: U.S. Chamber of Commerce Report “A Survey of Social Media Issues Before the NLRB): many cases against employers involve over-broad policies
  • -Access: “The lack of a clearly defined policy on account management may result in a situation where agency leadership does not have a handle on what types of social media accounts are being established, maintained, or closed by their employees for professional or official agency use. Therefore, a critical element to a social media policy for many is establishing who may set up an agency or professional social media account, as well as aprocedure for establishing an account. (Center for Technology in Government: “Designing Social Media Policy for Government”)-Policy should clarify accounts opened on behalf of organization or for professional use by individuals are company property and must be administered by company.-Who is allowed to post and how much editorial control given-Organizations should define their purpose/goal in using social media, as part of their overall comm strategy. -Strategy should include guidelines for citizen/fan engagement, ie what content will be deleted (inappropriate language, commercially related posts like advertisements of goods/services, profanities, language that may encourage/foster discrimination, hate, illegal conduct, comments not relevant to original post.-Discourage employees getting into heated discussed on co. behalf, e.g. while trying to defend paper/ stories/decisions
  • -Integration, other policies: HR manual etc should include all communication mediums incl. SM-Zero tolerance policies on harassment, discrimination, defamation etc—apply consistently to SM-Potential risks include loss of privacy when using company equipment and accounts, personal liability
  • -Contract=“meeting of minds” but TOS is one-sided; courts generally recognize as sufficient but there are distinctions in some cases between types of users (ie passive users who merely read one link vs. users who interact and/or register)-Courts may not have explicitly recognized passive users as category but in deciding contract enforcement disputes have considered whether passive media users should be de facto exempt-End-user license agreement or Terms of Service: same click-wrap vs. browse-wrap issues apply-Specifically: In Burcham v. Expedia, the United States District Court for the Eastern District of Missouri found that "[c]ourts presented with the issue [of online agreements] apply traditional principles of contract law and focus on whether the plaintiff had reasonable notice of and manifested assent to the online agreement." Specifically regarding browsewrap agreements, the court noted that other courts "have held that 'the validity of a browsewrap turns on whether a website user has actual or constructive knowledge of a site's terms and conditions prior to using the site." Thus, in order to be bound, parties need not have a "meeting of the minds." Rather, a "reasonable communication" of the terms will suffice… The reasonable communication requirement serves as a substitute for a clear manifestation of assent to the contract. Thus, a reasonable communication of terms gives rise to what is commonly referred to as the offeree's "duty to read." In other words, if the terms of a contract are reasonably communicated, the offeree cannot then absolve himself or herself from liability byfailing to read the terms of the contract. The offeree had a legal duty to read them” (from: “THE NEW PRICE TO PLAY: ARE PASSIVE ONLINE MEDIA USERS BOUND BY TERMS OF USE?” in Communications Law & Policy Autumn 2010)-Courts look for whether browse-wrap agreements are presented in a conspicuous manner. General implication is that passive users could not be bound by browse-wrap agreements, which is what online newspapers typically use.-Generally, courts uphold that contract can’t be modified without a notice mechanism.-Safe Harbor/Section 512 (as discussed in class, part of DMCA, relieves online platforms from liability regarding copyright infringement as long as it has a take-down process posted and followed. May be more gray if user-generated content not automatic, ie moderated.-Digital Advertising Alliance has developed a mechanism/link consumers can click to learn about and opt out of behavioral advertising. See FTC Framework, final slide
  • -Content guidelines: no commercial postings; no libelous, slanderous, harassing; courteous language, respectful etc—same as with social media policy, earlier slides; paper may edit/modify/delet-End-user license agreement or Terms of Service: same click-wrap vs. browse-wrap issues apply
  • -Some US lawmakers and FTC raising concerns about need to better regulate how websites track users using "cookies," "beacons," "pixels," etc that operate behind the scenes to record visited pages and often keep tracking off-site use and report it back.-WSJ found that 50 major sites place an average of 64 of these tracking software pieces on each user’s computer. Info provided to marketers, who argue it helps provide more efficient/personalized advertising.-Click-wrap agreements: user is presented with contract and must click “accept” to proceed; browse-wrap: by browsing past home page you consent to TOS etc.-COPPA: Children’s Online Privacy Protection Act. FTC found in 1997 after studying websites directed toward children that 89% of them “collected personal information directly from children,” but only 10% of those that did had “mechanisms for parental control over the collection and use of such information.” Congress passed COPPA as result in 1998. Main objective to protect children under 12; intended for sites directed at children with focus on private collection/storing and parental consent; prohibits selling to third parties etc. Site operators must determine for themselves if they would be considered directed toward children.
  • -Distinguish between personally identifying information (ie name/email address) and aggreggate information (ie region of origin, links visited)-Include legal circumstances, ie “We may disclose personal information if we are required to do so by law or we in good faith believe that such action is necessary to (1) comply with the law or with legal process; (2) protect and defend our rights and property; (3) protect against misuse or unauthorized use of our Web sites; or (4) protect the personal safety or property of our users or the public (among other things, this means that if you provide false information or attempt to pose as someone else, information about you may be disclosed as part of any investigation into your actions).” (from Herald-Tribune)-Explain use of cookies, analytics technology (ie Google Analytics), third-party tracking (ie beacons/cookies from ads)-Explain database for communication purposes, ie news bulletins, fundraising announcements, communication from parent organization, reader surveys-GENERAL GUIDELINE: Policy should have simple, easy to understand language (as set forth by FTC in March release of its consumer privacy protection report, see last slide)-Transfer of data clause important: FTC letter to XY.com and XY Magazine (publication policy said data will not be shared with anyone, period; data could not be transferred as part of bankruptcy proceedings after publication closed)
  • -Nat’l Labor Review Board hearing of complaint AMR/Teamsters: http://www.scribd.com/doc/41010696/American-Medical-Response-of-CT-NLRB-Nov-2010; employee alleged wrongful termination after using profane language on Facebook to complain against employer. NLRB: Overly broad policies violate Section 7 of NLRA. (Discussion: http://btlj.org/2011/03/07/nlrb-v-american-medical-response-a-rare-case-of-protected-employee-speech-on-facebook/)GOOD RESOURCES: U.S. Chamber of Commerce report on NRLB cases; Center for Technology in Government: “Designing Social Media Policy for Government”-Sample TOS and privacy policies: www.heraldtribune.com/section/privacypolicy and www.heraldtribune.com/section/termsofservice (Herald-Tribune); Christian Science Monitor: http://www.csmonitor.com/About/Privacy-Policy-FTC framework: Privacy by Design: Build in privacy at every stage of product development; Simplified Choice for Businesses and Consumers: Give consumers the ability to make decisions about their data at a relevant time and context, including through a Do Not Track mechanism, while reducing the burden on businesses of providing unnecessary choices and Greater Transparency: Make information collection and use practices transparent. (Worth noting; WWW Consortium is developing a universal web protocol for “Do not track,” similar to “Do not call” list; a number of websites have developed tools for consumers to request “do not track” already)Framework does not apply to companies that collect only non-sensitive data from fewer than 5,000 consumers a year, provided they do not share the data with third parties. Also has five commonly accepted categories in which businesses need not provide choices (including first-party advertising, internal operations, fraud prevention, product fulfillment and legal compliance)-Harvard posting TOS: reserve right to remove certain content, e.g. defamatory, obscene, threatening, illegal, infringing of intellectual property rights, invasive of privacy, objectionable; users warrant they have copyrights to posted content; not knowingly posting misleading or false info. Harvard doesn’t prescreen content. User liable for content and bears all risks associated with using content.-Easter Seals posts rules, ie be respectful, keep comments on topics, protect your privacy
  • Digital media policy presentation

    1. 1. Creating digital media policies Presented by Rodika Tollefson MCDM Digital Media Law & Policy May 2012
    2. 2. Background Project scope: Key Peninsula News digital media policies Deliverables: Social media; online privacy; EULA Special considerations: Largely volunteer-run nonprofit in early stages of online presence, looks to growdigital presence including ads and user-generated content, interaction
    3. 3. Social media policyStaff personal use of social media Issues: -Protecting company reputation -NLRA concerted activities (posts re. conditions/terms of employment protected) -Code of conduct (incl. offensive, unlawful, discriminatory etc.) -Journalism ethics/avoidance of bias, slander -Control of info flow/copyright issues/ confidentialityGood source on NLRA: U.S. Chamber of Commerce report, “ASurvey of Social Media Issues before the NLRB; good SMsource: Center for Technology in Government’s “DesigningSocial Media Policy for Government”
    4. 4. Social media policyOrganizational use of social media Issues: -Account access and control -Organizational purpose in using SM -Content posting policy and social media strategy -Guidelines for citizen/fan engagement (e.g. refrain from commercial post, offensive language, harassment etc)
    5. 5. Social media policyRecommendations on policy design Avoid legalese, excessive jargon etc -Use plain language Designed to educate -Friendly tone -Focus on do’s vs. don’ts -Potential risks Keep consistent with other policies (ethics guide, code of conduct, HR manual) and integrate Built on trust, organizational culture, transparency Include due process for infractions and personal responsibility emphasis
    6. 6. EULA/TOSFocus issues User/member submitted content Passive user considerations Legal issues regarding policy updates Copyright infringement/Section 512 Behavioral advertising (Digital Ad. Alliance developing mechanism/ link for consumers to click to opt out)
    7. 7. EULA/TOSRecommended policy sections Personal liability (e.g. copyrights, libel) User-submitted content guidelines Disagreement dispute process Section 512 take-down process Representation & warranties (standard language)
    8. 8. Online privacy policyMain issues Information collection and sharing -lawmakers/FTC concern of better regulation of cookies, beacons etc COPPA (protecting children under 13) Click-wrap vs. browse-wrap agreements
    9. 9. Online privacy policyPolicy sections: recommendations What information is gathered What is done with the information Whom is it shared with Use of email for communication/offers How to opt out How is information protected Transfer in case of sale etc (see XY.com FTC case)
    10. 10. Sources consulted/considered Journalism organizations’ policies (Reuters, Scripps etc) Court cases and NLRB advice/opinions Legal journal articles and opinions Online communities (Harvard blogs, Easter Seals) FTC’s “Protecting Consumer Privacy in an Era of Rapid Change” report, March 2012 Other nonprofits (SocialFish, Easter Seals, IEEE)
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