Navigating Social Media Legal Risks Featuring Author Robert McHale


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Author Robert McHale joined Social Media Club for our July Book Club Webinar featuring his new title, Navigating Social Media Legal Risks: Safeguarding Your Business - View the introductory post here:

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Navigating Social Media Legal Risks Featuring Author Robert McHale

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  2. 2. Navigating Social Media Legal Risks: Safeguarding Your Business Robert McHale, Esq. August 2012©2012 R | McHale Law. All rights reserved.
  3. 3. How Does Social Media Intersect with the Law?
  4. 4. The Intersection of Law and Social Media  Advertising and Marketing  Online Defamation  Human Resources, Recruiting, and Employee Rights  Privacy and Data Security  Intellectual Property  Copyright  Trade Secrets  Trademarks  Regulatory Compliance  Litigation and E-discovery
  5. 5. What Laws Govern Social Media?
  6. 6. Social Media Laws and Regulations  The Federal Trade Commission (FTC) Act  Anti-Discrimination Laws (state and federal)  The Lanham Act  Fair Credit Reporting Act (FCRA)  Children’s Online Privacy Protection Act (COPPA)  Health Insurance Portability and Accountability  Digital Millennium Copyright Act (DMCA) ACT (HIPAA)  Communications Decency Act (CDA)  Electronic Communications Privacy Act (ECPA)  National Labor Relations Act (NLRA)  Stored Communications Act (SCA)  CAN-SPAM Act  Fair Credit Reporting Act (FCRA)  FTC’s Guides Concerning the Use of Endorsements and  Gramm-Leach-Bliley Act (GLB) Testimonials in Advertising  Sarbanes-Oxley Act (SOX)  Intellectual Property  USA Patriot Act  Copyrights  Common Law  Trademarks  Defamation  Trade Secrets  Invasion of Privacy/Publicity
  7. 7. Common Risk Areas
  8. 8. Risk Areas1. Employee Monitoring, Screening and Discipline2. False Advertising3. Endorsements and Disclosures4. Social Media Contests and Sweepstakes5. Trademark Protections from Brandjacking and Cybersquatting
  9. 9. Employee Monitoring, Screening & Discipline
  10. 10. Social Media in the Workplace  Social Media Background Checks (FCRA)  Employee Discipline (NLRA)  Employee Endorsements (FTC)  Discrimination / Harassment  Privacy
  11. 11. The FCRA is Real. So is FTC Scrutiny.
  12. 12. When the FTC Speaks, Spokeo Listens.
  13. 13. Facebook Firings - What the NLRB Has to Say.Employees are prohibited from “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”
  14. 14. Protected Grievance or Actionable Gripe?  Whether the social media post was submitted during working hours  Whether comments relate to wages, benefits, performance, staffing levels, or other terms and conditions of employment  Whether the social media activity appears to initiate, induce, or prepare for group action (versus mere griping)  Whether the employee’s co-workers had access to the social media postings  Whether co-workers responded to or otherwise participated in the social media postings
  15. 15. False Advertising
  16. 16. False Advertising: Business to ConsumerAn advertisement is unfair/deceptive if:  The representation is likely to mislead the consumer  The consumer’s reaction to the representation is reasonable, determined from the total impression the advertisement creates in the mind of the consumer  The representation is material – that is, it is “likely to affect the consumer’s conduct or decision with regard to a product or service”
  17. 17. Busted for False Advertising
  18. 18. False Advertising: Business to BusinessTo establish a claim of false/misleading advertising:  The defendant made a false or misleading statement of fact about its or plaintiff’s products or services  The false or misleading statement actually deceived or tended to deceive a substantial portion of the intended audience  The statement is material in that it will likely influence the deceived customer’s purchasing decision  The defendant has been or is likely to be injured as a result of the false statement
  19. 19. Be Careful with User Generated Content
  20. 20. “Scamberry?” Don’t Talk Smack!
  21. 21. Where Are My Facebook Manners?
  22. 22. Facebook Retraction
  23. 23. The FTC Endorsement Guides & Dot Com Disclosures
  24. 24. The FTC Endorsement Guides  Endorsements must be truthful and not misleading  If the advertiser doesn’t have proof that the endorser’s experience represents what consumers will achieve by using the product, the ad must clearly and conspicuously disclose the generally expected results in the depicted circumstances  All material connections must be clearly and conspicuously disclosed
  25. 25. The FTC’s 2000 Dot Com Disclosures  Prominence  Presentation  Placement  Proximity
  26. 26. AnnTaylor’s Wrist Slapped
  27. 27. Fake Reviews Cost Real Money
  28. 28. Disclose! Disclose! Disclose!
  29. 29. Social Media Contests and Sweepstakes
  30. 30. Contests and Sweepstakes – Not Lotteries  Sweepstakes: prize giveaways where the winners are chosen predominately by chance.  Contests: promotions in which prizes are awarded primarily on the basis of skill or merit.  Lotteries: random drawings for prizes wherein participants have to pay to play. A lottery has three elements: prize, chance, and consideration. [ILLEGAL!]
  31. 31. Sweepstakes Laws  Clear and conspicuous statements: “no purchase is necessary;” “a purchase will not improve one’s chances of winning;” and “void where prohibited”  The method of entry, including a consideration-free method of entry that has an equal chance with the purchase method of entry  Start / end dates  Eligibility requirements  Sponsor’s complete name and address  Description and approximate retail value of each prize, and the odds of winning each prize  Manner of selection of winners and how/when winners will be notified  Where and when a list of winners can be obtained
  32. 32. Contests Laws  Name and business address of the sponsor of the contest  The number of rounds or levels of the contest, the cost (if any) to enter each level, and the maximum cost (if any) to enter all rounds  Whether subsequent rounds will be more difficult to solve, and how to participate  The identity or description of the judges and the method used in judging  How and when winners will be determined  The number of prizes, an accurate description of each prize, and the approximate retail value of each prize  The geographic area of the contest  The start and end dates for entry  Where and when a list of winners can be obtained
  33. 33. Social Platform Rules Matter
  34. 34. Facebook Page Suspended
  35. 35. Enter by [not] “Liking”
  36. 36. Trademark Protections from Brandjacking andCybersquatting
  37. 37. Lessons in Brandjacking #1
  38. 38. Lessons in Brandjacking #2
  39. 39. Lessons in Brandjacking #3
  40. 40. Legal Guidelines for Social Media Policies
  41. 41. Vital Corporate Social Media Policy Provisions  Social Media Goals  Register Social Media Accounts in Company’s Name  Permission and Parameters  Ownership of Social Media  Monitoring Accounts  Spokespersons  Disclosures/Disclaimers  Employee Participation  Endorsements  Confidential/Proprietary  Respect Copyrights and Information Intellectual Property Rights of  Use Privacy Settings Others  Nondisparagement and  Disciplinary Action Nondiscrimination  Security  Protected Activity  Employee Training  Personal Versus Official Use  Acknowledgment/Signature
  43. 43. Stay Connected Robert McHale, Esq. Tel: (617) 306-2183 @rmchalelaw Legal Disclaimer: This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and any specific legal questions you may have.