What’s driving the acceleration of social media?•Global/mobile•Rise of the digital natives•Movement from search to discovery
Law Regulatory/Codes of Conduct Platform TOS Social Media Policy NETIQUETTE5 sources of Authority Governing Social Media in Regulated Industries
LAW TRENDSEmployment Law• Employee SM background checks• Access to employee passwords/monitoring• Right to organize v. right to organization:NLRB/Costco case - September 7, 2012 - social mediapolicy goes too far) “be aware that statements posted electronically(such as to online message boards or discussion groups) that damage thecompany, defame any individual or damage any person’s reputation or violatethe policies outlined in the Costco Employee Agreement, may be subject todiscipline, up to and including termination of employment.”• Mobile liability (overtime and off-site negligence on the job)
LAW TRENDSCopyright/IP• Who owns the accounts? •Phonedog v. Kravitz (settled - Twitter) •Eagle v. Edcomm (LI contacts not trade secrets) •Maremont v. Fredman Designs (employer posts promos on employees FB account and impersonates her)• Liability/infringement •DCMA - safe harbor for hosts w/appropriate takedown notices
LAW TRENDSADVERTISING• FTC regulation re: blogging disclosures•FTC guidance on mobile use (August 2012)•FTC amends Child Online Privacy Protection Rule(parents gain more control) (December 2012).
LAW TRENDSE-DISCOVERY AND RECORDS• Courts beginning to clarify what is discoverable insocial media•Records maintenance - new complications throughmobility, SEC regulations on retention if communicationsare through social media
REGULATORYFDA Rules, largely for pharmaceuticalissued 12/2011General disclosures for regulated, publiclytraded entities (SEC, Sarbanes Oxley,etc…)Emerging issue: duty to report food virusetransmissions raised on social media?
REGULATORY Platform terms of service•Issues regarding platform TOS • Importance of notifying users of platform TOS •Familiarity with platform TOS to avoid liability •Special rules on contests •Prohibitions on spam (Twitter suing spammers)
Social Media REGULATORY Platform terms of POlicy service•Signiﬁcant for risk management, BUT •Must comply with applicable law (e.g., NLRB) •Should not reinvent the wheel (tie in existing codes of conduct and records management practices; don’t re- write) •Broad principles with examples better than platform speciﬁc regulation (since platforms are always changing) •Be updated regularly for new developments (e.g., mobile) •Must be accompanied by adequate training, reputation monitoring and cyber-insurance if no existing coverage
5 Take-AwAysFor social media use in the food industry •Transparency, authenticity and respect are paramount and better than platform-speciﬁc regulation. •Social media policy is important are critical, but only 1 piece of the puzzle. •Ounce of prevention = pound of cure; humor is better medicine than litigation (if possible) •Changing parameters require constant updating. Nothing static. •Risks can be managed but rewards can’t be recaptured
CONTACT: Carolyn Elefant Washington DC 202-297-6100 www.carolynelefant.com@carolynelefant, @nxtgenenergylawwww.linkedin.com/in/Carolynelefant http://pinterest.com/myshingle/