Social Media Law: The Legal Do's and Don'ts of Social Media

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This 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.

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Social Media Law: The Legal Do's and Don'ts of Social Media

  1. 1. SOCIAL MEDIA LAW The Legal Do’s and Don’ts of Social Media Presented for TrustPoint Management Group August 10, 2012
  2. 2. Tweet it up: #socialmedialawwww.brittontuma.com #socialmedialaw 2
  3. 3. Notes 1. Add Pictures 2. Streamline sections – 45 minutes 3. Insert Copyrightwww.brittontuma.com #socialmedialaw 3
  4. 4. 4
  5. 5. WHAT ISSOCIAL MEDIA LAW? #socialmedialaw 5
  6. 6. 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 #socialmedialaw 6
  7. 7. Social Media Law:  inherent risks  natural tension between legal and marketing  BUT!!!  I am “sold out” on social media and an avid user … and I don’t want to get sued either …www.brittontuma.com #socialmedialaw 7
  8. 8. My Goal:  find an acceptable balance  educate you on risks of using social media, along with other digital business risks  help show you some ways to minimize those risks  Remember: social media is a tool – what you say and do is much like “real life”  “Real life” rules still apply – use your common sense!www.brittontuma.com #socialmedialaw 8
  9. 9.  what is social media law  traditional areas of law incorporated  practical examples of how they arise  how to minimize the risk  can’t eliminate, only minimize  social media policies  workplace training and guidance  cyber-insurance  other digital business risks  data breach & hacking  computer fraud / Computer Fraud and Abuse Act  Q&Awww.brittontuma.com #socialmedialaw 9
  10. 10. 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 #socialmedialaw 10
  11. 11. 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 this past week, Illinois became one of 2 states to enact a law prohibiting this; eff. date: 1/1/13www.brittontuma.com #socialmedialaw 11
  12. 12. www.brittontuma.com #socialmedialaw 12
  13. 13. Look to Common Law  contract law  intellectual property law  torts – defamation  regulatory law  employment law  evidence lawwww.brittontuma.com #socialmedialaw 13
  14. 14. You can’t protect against what you don’t know, so …www.brittontuma.com #socialmedialaw 14
  15. 15. 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 (7/15/11)  each service or site has a contract  contract lawwww.brittontuma.com #socialmedialaw 15
  16. 16. 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 and strategies  secret business initiatives and plans  business situational awareness  intellectual property law: trade secretswww.brittontuma.com #socialmedialaw 16
  17. 17. Who wants to get sued?  infringement of trademark  infringement of copyright  DMCA Takedown Request  right to publicity  name, voice, signature, photo, likeness (statutory after death)  common law while living if for value  must have a license or use creative commons  intellectual property lawwww.brittontuma.com #socialmedialaw 17
  18. 18. Who wants to get sued some more?  what you (and your employees) say can hurt you!  business disparagement  tortious interference  defamation (libel & slander)  false advertising & false warranties  fraud & negligent misrepresentation  harassment and cyber-bullying  “puffery” of factswww.brittontuma.com #socialmedialaw 18
  19. 19. Who wants to get investigated by the Feds?  FTC – Investigated Hyundai for not disclosing incentives given to bloggers for endorsements.  HHS & OCR – could have investigated hospital employee who posted patient pictures and “PHI” on Facebook (“it’s just Facebook!”)  SEC – false statements made in raising funds (SEC v. Imperia Invest. IBC) or wrongful disclosures of information  regulatory lawwww.brittontuma.com #socialmedialaw 19
  20. 20. What are some real trouble spots?  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  Employment issues are one of the main areas in which legal and general business problems arise  Discussed in next sectionwww.brittontuma.com #socialmedialaw 20
  21. 21. Can you guess what will be used against you if any of these problems arise?  social media is evidence – very powerful evidence!  electronically stored information (“ESI”) is quickly becoming the most useful form of evidence available  evidence from social media is now obtained and used in virtually every kind of lawsuit and investigation  we now have complete records of 2-way communication stream – like all calls recorded!www.brittontuma.com #socialmedialaw 21
  22. 22. MINIMIZING THE RISKS OF SOCIALMEDIA IN BUSINESS #socialmedialaw 22
  23. 23. 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 #socialmedialaw 23
  24. 24. 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 #socialmedialaw 24
  25. 25. 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 #socialmedialaw 25
  26. 26. 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 #socialmedialaw 26
  27. 27. 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 #socialmedialaw 27
  28. 28. 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 #socialmedialaw 28
  29. 29. www.brittontuma.com #socialmedialaw 29
  30. 30. www.brittontuma.com #socialmedialaw 30
  31. 31. www.brittontuma.com #socialmedialaw 31
  32. 32. 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 #socialmedialaw 32
  33. 33. MINIMIZING OTHERDIGITAL BUSINESS RISKS #socialmedialaw 33
  34. 34. 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 #socialmedialaw 34
  35. 35. Customer Information – do you retain it on your system?  Data Breach  Effective 9/1/12, if you conduct business in Texas and your system is breached and your customer’s unencrypted “sensitive personal information” is, or is reasonably believed to have been compromised, must notify all Texas residents of breach.  The notice must be given “as quickly as possible” and failure or delay in doing so results in a fine of $100.00 per individual per day (not to exceed $250,000)  Notice may be made through written or electronic means though it can be given by major media outlets if the cost of providing notice exceeds $250,000 or the number of persons exceeds 500,000www.brittontuma.com #socialmedialaw 35
  36. 36. www.brittontuma.com #socialmedialaw 36
  37. 37. www.brittontuma.com #socialmedialaw 37
  38. 38. Why is the Computer Fraud and Abuse Act important?  Primary Law for Misuse of Computers  Computers …www.brittontuma.com #socialmedialaw 38
  39. 39. “Everything has a computer in it nowadays.” -Steve Jobswww.brittontuma.com #socialmedialaw 39
  40. 40. The CFAA says has a processor or stores data “the term ‘computer’ means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but …” “such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device;”www.brittontuma.com #socialmedialaw 40
  41. 41. What aboutwww.brittontuma.com #socialmedialaw 41
  42. 42. The CFAA applies only to “protected” computers This may limit the problem of applying it to alarm clocks, toasters, and coffee makers Protected = connected to the Internet Any situations where these devices are connected?www.brittontuma.com #socialmedialaw 42
  43. 43. • TI-99 • Leap Frog Leapster • iPhone 4 • 3.3 MHz Processor • 96 MHz Processor • 800 MHz Processer • 16 KB of RAM • 128 MB of RAM • 512 MB of RAMwww.brittontuma.com #socialmedialaw 43
  44. 44. The CFAA prohibits wrongfully accessing a computer where the access  Obtains information  Commits a fraud  Obtains something of value  Transmits damaging information  Causes damage  Traffics in passwords  Commits extortionwww.brittontuma.com #socialmedialaw 44
  45. 45.  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 #socialmedialaw 45
  46. 46. www.brittontuma.com #socialmedialaw 46

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