Social Media Law: It is Real and, Yes, Really Can Impact Your Business (see link to full video of presentation below)

SOCIAL MEDIA LAW It is Real and, Yes, Really Can Impact Your Business Presented for Social Media Breakfast - Dallas August 30, 2012

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I am a lawyer  what I say today, the slide presentation, and the video are for educational purposes only and not intended to be legal advice and should not be relied on as such  this does not create an attorney-client relationship  why am I really happy about being here and what am I really trying to do?www.brittontuma.com #smbdallas 3

1. Can I be sued for [x, y, or z]? Yes! 2. Is the risk of using social media worth it? Law + Social Media = Peaceful Coexistencewww.brittontuma.com #smbdallas 5

Today I want to:  help find an acceptable balance  educate you on risks of using social media, along with other digital business risks  show you some ways to help minimize those risks  Remember: social media is a tool – what you say and do is much like “real life”  Use common sense!  Of course use social media – but use it properly!www.brittontuma.com #smbdallas 6

WHAT ISSOCIAL MEDIA LAW? #smbdallas 7

Social Media Law: The law that applies to and governs the use of social media. (was that all you really wanted to know?)www.brittontuma.com #smbdallas 8

Social Media Law:  inherent risks  natural tension between promoters v. risk management in business  BUT!!!  I am “sold out” on social media and an avid user … and I don’t want to get sued either …www.brittontuma.com #smbdallas 9

2 General Types of Law  Codes: legislatures create specific laws to address specific problems  Common Law: judges look to general principles of law and, by using reason, apply those principles to resolve previously unforeseen problemswww.brittontuma.com #smbdallas 10

Legislatures want to keep up  impossible  speed technology is evolving  speed culture and business environment changing  legislature too slow example: • last spring the big ruckus was prospective employers asking for social media logins – the massive public outcry made it such that nobody in their right mind would do that now • Aug 2012: Illinois became one of 2 states to enact a law to prohibit (eff. date: 1/1/13)www.brittontuma.com #smbdallas 11

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Look to Common Law  contract law  intellectual property law  torts – defamation  regulatory law  employment law  evidence lawwww.brittontuma.com #smbdallas 13

You can’t protect against what you don’t know, so let’s apply this “law stuff” to the real world …www.brittontuma.com #smbdallas 14

Who uses social media for marketing?  do you want to give your marketing efforts to your competitor?  who really owns your account  followers / connections?  “an ounce of prevention is worth a pound of cure”: PhoneDog v. Kravitz  each service or site has a contract  contract lawwww.brittontuma.com #smbdallas 15

Who has trade secrets, confidential and proprietary information?  do you want to tell your competitors?  customer / vendor lists  who are you talking to or following?  secret business alliances, strategies, plans  business situational awareness  intellectual property lawwww.brittontuma.com #smbdallas 16

Who wants to get sued?  infringement of trademark  right to publicity  name, voice, signature, photo, likeness (statutory after death)  common law while living if for value  commercial v. educational or newsworthy  audience picture v. company promo video  infringement of copyright  attribution isn’t always enough  DMCA Takedown Request  Google now penalizes for too many  must have a license or use creative commons  intellectual property lawwww.brittontuma.com #smbdallas 17

Copyright Example License: Creative Commons Attribution 3.0 Attribution: prthugp @ http://www.officialpsds.com/prthugp-Profile9747.htmlwww.brittontuma.com #smbdallas 18

Who wants to get sued some more?  what you (and your employees) say can hurt you! Bland v. Roberts – “Like” case  tortious interference  defamation (libel, slander, bus. defamation)  false advertising & false warranties  fraud & negligent misrepresentation  online impersonation  harassment and cyber-bullying  “puffery” of factswww.brittontuma.com #smbdallas 19

Who wants to get investigated by the Feds?  FTC – Investigated Hyundai for not disclosing incentives given to bloggers for endorsements.  Google this week. (Fed. Ct. in Oracle v. Google)  HHS & OCR – could have investigated hospital worker who posted patient “PHI” on Facebook (“Funny, but this patient came in to cure her VD and get birth control.”)  SEC – false statements in raising funds (SEC v. Imperia Invest. IBC) or insider information  “Board meeting. Good numbers=Happy Board.” before official release  regulatory lawwww.brittontuma.com #smbdallas 20

What are some real trouble spots?  Employment issues – next section  Giveaways and contests can be trouble for many reasons – do not do them on social media without having it thoroughly vetted  many sites’ TOS prohibit  jurisdiction gambling and contest rules  Have you read Facebook’s Page Terms? (https://www.facebook.com/24hfcastlehills/posts/403914059658181)www.brittontuma.com #smbdallas 21

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What if someone is talking bad about your business on social media?  defamation rules apply online  but … be careful  the “Streisand Effect”  Dallas law firm  anti-SLAPP (Strategic Lawsuits Against Public Participation)www.brittontuma.com #smbdallas 23

Guess what will be used against you?  social media is evidence – very powerful evidence!  electronically stored information (“ESI”) is becoming the most useful form of evidence in virtually every kind of lawsuit and investigation  we now have complete records of 2-way communication stream – like all calls recorded!  you don’t “own” your tweets! (“If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy.” State of N.Y. v. Harris)  4th Am. ≠ protect Facebook posts (U.S. v. Meregildon, Aug. 10, 2012)www.brittontuma.com #smbdallas 24

MINIMIZING THE RISKS OF SOCIALMEDIA IN BUSINESS #smbdallas 25

Monitor, Regulate & Archive SM  Necessary if regulated industry  finance, insurance, energy & utilities, healthcare, government, legal  Wise for others  Products  Barracuda Web Filter  DataSift  Actiancewww.brittontuma.com #smbdallas 26

In general you want to  recognize and appreciate potential issues  decide how to handle those issues  educate your team on those issues  collaborate and train on how to comply with and resolve issues  create and outline procedures for using social media  monitor (to some degree) to ensure compliancewww.brittontuma.com #smbdallas 27

Social media policies are a “must have”  ounce of prevention: less than 1 day of litigation  if have, must enforce  trying to predict issues – but evolving – can’t get all  contractually resolve issues such as ownership and authority  great opportunity to set rules and document expectations  greater opportunity to explain and ensure understanding of expectations  put on notice of monitoring – and actually monitor!  should address employment issueswww.brittontuma.com #smbdallas 28

Employment Issues  using social media in hiring  best to have set criteria with neutral third party investigate for criteria  not use to discriminate  e.g., snooping to find race, gender, age, disability, pregnancy  e.g., search for candidates on Twitter where disproportionate number of people <40 yrs. on Twitter, may violate the Age Discrimination in Employment Act  requesting social media login informationwww.brittontuma.com #smbdallas 29

Employment Issues  using social media for the company  scope of work for duties and times  e.g., overtime for weekend “Facebooking”  personal or company owned accounts / followers  familiarity and compliance with site Agreement / TOS  what is authorized / prohibited  responsibility for statements / disclosures  monitored  saying “use good judgment” is not enough!www.brittontuma.com #smbdallas 30

Employment Issues  using personal social media during work  can be prohibited  may prohibit using or disclosing company IP for personal SM  may prohibit using company info for setting up personal SM accountswww.brittontuma.com #smbdallas 31

You need social media policies but the National Labor Relations Board is making it difficult  NLRB jurisdiction = impacts interstate commerce  National Labor Relations Act (NLRA) sec. 7 gives employees right to engage in “concerted activities for the purpose of … mutual aid and protection”  NLRB finds illegal any policy provision that (a) restricts or (b) an employee would reasonably construe to chill concerted activities  On 5/30/12 NLRB General Counsel issued its 3rd Report on Social Media Policies in 1 year period (8/11 & 1/12)www.brittontuma.com #smbdallas 32

Can you guess who the NLRB is pulling for?  making it very difficult for businesses to protect themselves  social media policies must now be carefully tailored to  address unique business and legal needs of your business  be enforceable and lawful in a court of law  be legal in the eyes of the NLRB  Examples of provisions found illegal by NLRBwww.brittontuma.com #smbdallas 33

What is the NLRB really looking for?  clarity and precision  examples of do’s and don’ts that give context and real-life meaning to the ruleswww.brittontuma.com #smbdallas 37

Cyber Insurance  If you are doing anything in cyberspace, you need it. Period.  Most traditional insurance does not cover cyber-events, even if you think it does (really!)  Cyber-Insurance is relatively inexpensive  Most policies come include a cyber-risk audit before the policies are underwritten  Policies can cover social media risk, computer fraud risk, and data breach / hacking riskwww.brittontuma.com #smbdallas 38

 social media is wonderful!  must find proper balance  need a social media policy  address unique business and legal needs of your business  be enforceable and lawful in a court of law  be legal in the eyes of the NLRB  need to enforce social media policy  need to spend time with employees to help them understand and possibly collaborate on the rules  need to look at cyber-insurance!www.brittontuma.com #smbdallas 39

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Social Media Law: It is Real and, Yes, Really Can Impact Your Business (see link to full video of presentation below)

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Social Media Law: It is Real and, Yes, Really Can Impact Your Business (see link to full video of presentation below) Presentation Transcript