This presentation was made to Marketing Executives Networking Group (MENG) - Dallas on November 9, 2012.
The presentation provides an overview of social media law, that is, the legal issues involved in using social media. The presentation provides practical examples of how those issues come about in the business world and provides ways to minimize the risks associated with those issues, including the use of social media policies.
Social Media Law - Marketing Executives Networking Group (MENG)
1. SOCIAL MEDIA LAW
It is Real and, Yes,
Really Can Impact Your Business
Presented for
MENG
Marketing Executives Networking Group - Dallas
November 9, 2012
2. I am a lawyer
what I say today as well as the slide presentation 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?
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4. 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 Coexistence
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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!
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7. Social Media Law:
The law that applies to and
governs the use of social media.
(was that all you really wanted to know?)
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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 …
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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 problems
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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)
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12. Look to Common Law
contract law
intellectual property law
torts – defamation
regulatory law
employment law
evidence law
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13. You can’t protect against what you
don’t know, so let’s apply this “law
stuff” to the real world …
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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 law
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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 law
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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 law
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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 facts
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19. Who wants to get investigated by the
Feds?
FTC – Investigated Hyundai for not disclosing incentives
given to bloggers for endorsements.
Google recently. (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 law
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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)
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22. 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)
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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)
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25. Monitor, Regulate & Archive SM
Necessary if regulated industry
finance, insurance, energy &
utilities, healthcare, government, legal
Wise for others
Products
Barracuda Web Filter
DataSift
Actiance
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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 compliance
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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 issues
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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 information
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29. 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 accounts
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30. 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)
9/7/12 First NLRB Ruling; 9/20/12 first NLRB Admin.L.J.
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31. 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 NLRB
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35. 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 rules
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36. 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 risk
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37. 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!
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