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Legal Issues In Social Media Oct. 2012


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Legal Issues In Social Media Oct. 2012

  1. 1. Legal Risks in Social Media Lori Krafte Wood Herron & Evans LLP
  2. 2. Social Media Environment Web-based and mobile technology that allows you to interact with your clients (and lets them interact with each other). •Facebook/YouTube/Twitter/Pinterest •Blogging •Foursquare and other mobile apps
  3. 3. Social media meansopportunities… • Drive traffic to get your message out • Increase engagement with the BBB • Hear from your clients • Be where your clients live!
  4. 4. … but there are risks, too. You have less control over your message: • Because the BBB’s own speech is more spontaneous and less likely to be vetted • Because client-generated speech might become your own
  5. 5. Before posting, blogging, tweeting,collecting, you’ll want to understand…• Privacy and data security concerns• Copyrights in the social media environment• Criticizing without defaming – and when you can host (not post!) defamatory comments
  6. 6. Do’s and Don’ts of Privacy andData SecurityKnow what laws/standards apply to your BBB• FTC jurisdiction – it’s complicated• state laws• best practices
  7. 7. Personal Information –The Definition IsExpanding • PI has always included first and last name, address, email, telephone number, SSN, etc. • now, probably includes IP addresses, customer numbers held in cookies, linking of information across websites, and geolocation information. • photographs alone are also now PI
  8. 8. Personal Information • don’t collect it if you don’t need it • limit access to it, and store it properly • think about physical and logical security
  9. 9. Privacy PolicyWebsite privacy policies used to be voluntary; now you may be required to have one• your site is almost certainly interactive now• how are you collecting information from consumers?• how are you sharing information collected online or through mobile? with whom?
  10. 10. Privacy Policy (continued)• how will users interact with you? passive viewing? contributing content?• what information will they provide? what will be passively collected?• will there be any community forums?• how long will info collected online be kept?• will personal info collected online be shared with any third party?
  11. 11. Data Collection • don’t collect it if you don’t need it • think about how you will interact with consumers • will you need to contact them? • if so, will you use email? phone? postal address? if not all of these, you don’t need the info
  12. 12. Data Security • limit access to it, and store it properly • think about physical and logical security • pay attention to how you move it • treat it as you would treat hazardous waste
  13. 13. Data Retention and Destruction • don’t keep it longer than you need it • dispose of it properly • liability for identity theft should not be sitting in your dumpster – shred, shred, shred! • clean hard drives before discarding • know the state laws regulating disposal of personal data
  14. 14. CAN-SPAM Act of 2003Purpose was to regulate unsolicited bulk commercialemail • but it applies to ALL commercial messages, bulk or not • including B2B messages for any product or service
  15. 15. CAN-SPAM (continued) • clearly and conspicuously identify the email as an advertisement • make sure all header info is correct • include a valid physical postal address
  16. 16. CAN-SPAM (continued) • create an easy opt-out with clear notice – and honor it quickly • don’t forget that your email service may have policies even more restrictive than CAN-SPAM!
  17. 17. Sharing Mailing Lists • Outgoing: • movement toward opt-in or permission-based marketing • e.g., SB27 – California’s “Shine the Light” law requires certain information-sharing disclosures and consumer choice • Incoming: scrub for DNE
  18. 18. Special Considerations for Mobile • just because compliance is more difficult doesn’t mean the rules are different! • truth in advertising…dealing with the fine print • geolocation data
  19. 19. What Do You Do When Something Breaks? • have a plan – don’t wait till disaster happens • investigate • stop the bleeding • remediate • educate • communicate
  20. 20. Do’s & Don’ts of Criticizingwithout DefamingThe defamation issue arises in differentcontexts:•tweeting/blogging/posting about others•hosting third party comments on your site
  21. 21. Defamation ≠ Disparagement• disparaging a company’s product or service is not illegal• the government’s view is: disparage away, as long as it’s true• truthful information, even if unflattering, is important for consumers
  22. 22. Even Some False Speech Is Protected• proving defamation is intentionally difficult• understand why we tolerate some false speech (and why you should be careful anyway)
  23. 23. What is defamation?Defamation occurs when a false and defamatory statement of fact about an identifiable person or company is published to a third party, causing injury to the person or company’s reputation.
  24. 24. Elements of a Defamation Claim:1. the publication2. of a defamatory statement of fact3. that is false4. that is of or concerning the person/business5. and that causes damage to the person/business’s reputation6. with the requisite degree of fault
  25. 25. Defenses to a Defamation Claim •Truth •Opinion •Consent •CDA § 230
  26. 26. CDA § 230 is your friend!• for BBBs using social media, this part of the Communications Decency Act is a critical development in defamation law• immunity for providers with respect to third party content
  27. 27. Two-fold Immunity• for hosting a site where someone else posts a defamatory statement• for screening and editing objectionable materials someone else posts on your site
  28. 28. CDA § 230(c)(1). Treatment of apublisher or speaker.“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
  29. 29. CDA § 230(c)(2). Civil liability.“No provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
  30. 30. Practical Steps to Avoid Liabilityfor Defamation in BBB’s Own Speech • check and re-check your facts • don’t rely on a single source; get corroboration • conduct appropriate research and investigation
  31. 31. Keeping CDA Immunity• don’t become part of the conversation • be especially careful when moderating discussions• don’t suggest anything specific that would invite false and defamatory statements
  32. 32. Keeping CDA Immunity• but don’t worry about editing, monitoring, screening • you don’t become a speaker just by these editorial acts• so feel free to delete objectionable posts, and to set community standards for posting
  33. 33. Copyrights in theSocial Media Environment• understand and protect the assets you’re creating when you design a site, when you blog, even when you tweet!• pay attention to what you can and cannot use of others – copyright damages can be steep
  34. 34. What is a Copyright?• a limited monopoly that protects: • original works of authorship • that are fixed in a tangible medium of expression• easiest intellectual property right to obtain • it’s automatic (though registration has advantages)
  35. 35. What does the copyright monopolyget you?• the right to control the reproduction, distribution, and adaptation of your creative expression • others may copy your facts and ideas, but not your expression of them • and, while copyright doesn’t protect titles and short phrases, blog entries and websites are covered
  36. 36. Protecting Copyright Assets• think broadly of all the collateral assets you have that are copyrightable• take formal steps to protect your copyrights as appropriate• put notice on your copyrighted work: Copyright © 2012 by Cincinnati BBB.
  37. 37. Copyright Infringement in Social Media• rules are the same, but ease of infringing in the online environment makes it a huge problem• and the online environment poses additional risks: the digital copy is as good as the original
  38. 38. Don’t think that you can…• copy whatever’s on the internet, even if it says you may• copy a certain amount of expression without infringing• copy something just because it doesn’t have the © symbol or it isn’t registered with the Copyright Office• own the copyright just because you paid for the work
  39. 39. Elements of Copyright Infringement• plaintiff owns a valid copyright• defendant copied from plaintiff’s work• the copying was of the protectible portion (not facts, public domain, ideas)
  40. 40. Infringement and the Internet• the internet functions by linking and making multiple copies and derivative works• lots of copying is unauthorized, but not all• lots of derivative works are unauthorized, but not all• be sure to look at the site’s policies!
  41. 41. Infringement and the Internet (continued)• most unauthorized copying is infringing, but not all• most unauthorized derivative works are infringing, but not all• even if the site does not authorize the use, it might be permissible “fair use”
  42. 42. Defenses to Infringement: (1) Fair Use• excuses reasonable unauthorized use that in some way advances the public benefit without substantially impairing the present or potential economic value of the work• examples: criticism and commentary, news reporting, classroom use, research and scholarship – sometimes parody
  43. 43. Fair Use (continued)• is there a difference between retweeting a photo, and posting it on your BBB site?• is there a difference between using Pinterest personally and using it for business purposes?
  44. 44. Defenses to Infringement: (2) The DMCA Safe Harbor• Congress realized that hosts and service providers were worried about liability for what was posted by others on their sites• in 1998, Congress passed the Digital Millennium Copyright Act
  45. 45. DMCA Safe Harbor• places the burden on copyright owners to identify and notify “mere conduit” service providers of infringement on their systems• establishes safe harbors for providers who take the required steps
  46. 46. Who Is Protected by Safe HarborProviders in four categories of conduct:• transitory communications (routing services)• system caching (temporary data storage)• information location (search engines)• storage of info on system/network at direction of user
  47. 47. Storage at the Direction of the UserYou have safe harbor against an infringement claim if youhost a site where someone else posts infringing content, if:•you have no knowledge of infringement•on notification, you take down or block the content•you designate an agent to receive notice•you comply with take-down and put-back provisions
  48. 48. Why the Safe Harbor Is So Important• BBBs increasingly permit others to provide content on sites the BBBs host• this loss of control over content exposes a BBB to claims (including statutory damages of up to $150,000 per work infringed, plus attorney’s fees!)
  49. 49. Remember…• social media provides new opportunities to engage your audience, but…• pay special attention to: • ----------- • Preserving CDA immunity • Taking advantage of the DMCA safe harbor
  50. 50. THANK YOU!Lori Krafte, Esq.PartnerWood Herron & Evans LLP2700 Carew Tower441 Vine StreetCincinnati, Ohio 45202513.241.2324