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SOCIAL MEDIA LAW
Presented for
MENG
Marketing Executives Networking Group
It is Real and,Yes,
Really Can ImpactYour Busine...
2www.brittontuma.com
Shawn Tuma, Partner
BrittonTuma
Shops at Legacy, Plano,TX
469.635.1335
stuma@brittontuma.com
@shawnet...
3www.brittontuma.com
I am a lawyer
 what I say today as well as the slide presentation are
for educational purposes only ...
4
5
1. Can I be sued for [x, y, or z]?
2. Is the risk of using social media worth it?
www.brittontuma.com
Yes!
Law + Social ...
6
Today I want to:
 help find an acceptable balance
 educate you on risks of using social media, along with
other digita...
7
WHAT IS
SOCIAL MEDIA LAW?
8
Social Media Law:
The law that applies to and
governs the use of social media.
(was that all you really wanted to know?)...
9
Social Media Law:
 inherent risks
 natural tension between promoters v. risk
management in business
 BUT!!!
 I am “s...
10
2 GeneralTypes of Law
 Codes: legislatures create specific laws to
address specific problems
 Common Law: judges look...
11
Legislatures want to keep up
 impossible
 speed technology is evolving
 speed culture and business environment chang...
12www.brittontuma.com
13
Look to Common Law
 contract law
 intellectual property law
 torts – defamation
 regulatory law
 employment law
 ...
14
You can’t protect against what you
don’t know, so let’s apply this “law
stuff” to the real world …
www.brittontuma.com
15
Who uses social media for marketing?
 do you want to give your marketing efforts to
your competitor?
 who really owns...
16
“an ounce of prevention is worth a pound of cure”
 PhoneDog = employer; Kravitz = employee (product reviewer / blogger...
17
Who has trade secrets, confidential and
proprietary information?
 do you want to tell your competitors?
 customer / v...
18
 2007 – fleet ofAH-64 Apache helicopters
 Soldiers’ photos had geotags with exact
coordinates
 Insurgents used geota...
20
Who wants to get sued?
 infringement of trademark
 right to publicity
 name, voice, signature, photo, likeness (stat...
21
Copyright Example
www.brittontuma.com
Attribution: prthugp @ http://www.officialpsds.com/prthugp-Profile9747.html
Licen...
22
Who wants to get sued some more?
 what you (and your employees) say can hurt you!
Case Study: Bland v. Roberts – “Like...
23
Who wants to be investigated by the Feds?
 FTC – deceptive trade practices
 Investigated Hyundai for not disclosing i...
24
Specific trouble spots for marketers?
 Giveaways and contests can be trouble for many
reasons – do not do them on soci...
25www.brittontuma.com
26
What if someone is talking bad
about your business on social
media?
 defamation rules apply online
 but …
 the “Stre...
27
Guess what will be used against you?
 social media is evidence – very powerful evidence!
 electronically stored infor...
28www.brittontuma.com
• “The law has a right to every man’s evidence.”
• Courts look to social media for public posts, pri...
29
MINIMIZING THE
RISKS OF SOCIAL
MEDIA IN BUSINESS
30
• Monitor, Regulate & Archive SM
 Necessary if regulated industry
 finance, insurance, energy & utilities, healthcare...
31
In general you want to
 recognize and appreciate potential issues
 decide how to handle those issues
 educate your t...
32
Social media policies are a “must have”
 ounce of prevention: less than 1 day of litigation
 if have, must enforce
 ...
33
Employment Issues
 using social media in hiring
 best to have set criteria with neutral third
party investigate for c...
34
Employment Issues
 using personal social media during work
 can be prohibited
 may prohibit using or disclosing comp...
35
You need social media policies but the National
Labor Relations Board is making it difficult
 NLRB jurisdiction = impa...
36
Can you guess who the NLRB is pulling for?
 making it very difficult for businesses to protect
themselves
 social med...
37www.brittontuma.com
38www.brittontuma.com
39www.brittontuma.com
40www.brittontuma.com
41
What is the NLRB really looking for?
 clarity and precision
 examples of do’s and don’ts that give
context and real-l...
42
Cyber Insurance
 If you are doing anything in cyberspace, you need it.
Period.
 Most traditional insurance does not c...
43www.brittontuma.com
 social media is wonderful!
 must find proper balance
 need a social media policy
 address uniqu...
44www.brittontuma.com
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Social Media Law: It is Real, and, Yes, It Really Can Impact Your Business - Webinar for MENG (Marketing Executives Networking Group)

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This legally focused MENGinar will educate you on the risks of using Social Media along with other digital businesses. It will provide ways to help highlight:

What is social media law?
What are the more common legal issues related to businesses using social media?
How social media law can impact businesses?
What can be done to minimize the risks of those potential legal problems related to using social media?
Do the potential issues raised by using social media mean that it is better for my company to not use social media?
Shawn Tuma is a partner at the law firm BrittonTuma, a full service boutique business law firm that helps clients with all civil matters, including a full range of transaction, litigation, technology, and general counseling services. Shawn’s own broad based experience centers on business, technology, civil litigation, intellectual property litigation, and a unique expertise with cutting-edge legal issues such as computer fraud, information security, and cyber and information law.

Shawn is a frequent speaker on digital business risk issues such as computer fraud, data security, and social media law.

Published in: Law
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Social Media Law: It is Real, and, Yes, It Really Can Impact Your Business - Webinar for MENG (Marketing Executives Networking Group)

  1. 1. SOCIAL MEDIA LAW Presented for MENG Marketing Executives Networking Group It is Real and,Yes, Really Can ImpactYour Business
  2. 2. 2www.brittontuma.com Shawn Tuma, Partner BrittonTuma Shops at Legacy, Plano,TX 469.635.1335 stuma@brittontuma.com @shawnetuma blog: shawnetuma.com web: brittontuma.com ShawnTuma is a lawyer whose practice is focused on cutting-edge cyber and information law and includes issues like social media and emerging technology and helping businesses defend their data and intellectual property against computer fraud, data breaches, hacking, corporate espionage, and insider theft. Shawn stays very active in the cyber and information law communities:  Best Lawyers in Dallas 2014, D Magazine (Digital Information Law)  Chair, Collin County Bar AssociationCivil Litigation & Appellate Section  Council Member, State Bar ofTexas Computer &Technology Section  College of the State Bar ofTexas  Privacy and Data Security Committee of the State Bar ofTexas  Litigation, Intellectual Property, and Business Sections of the State Bar ofTexas  Information Security Committee of the Section on Science &Technology Committee of the American Bar Association  Social Media Committee of the American Bar Association  NorthTexas Crime Commission,Cybercrime Committee  International Association of Privacy Professionals The information provided is for educational purposes only, does not constitute legal advice, and no attorney-client relationship is created by this presentation.
  3. 3. 3www.brittontuma.com 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
  4. 4. 4
  5. 5. 5 1. Can I be sued for [x, y, or z]? 2. Is the risk of using social media worth it? www.brittontuma.com Yes! Law + Social Media = PeacefulCoexistence
  6. 6. 6 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! www.brittontuma.com
  7. 7. 7 WHAT IS SOCIAL MEDIA LAW?
  8. 8. 8 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
  9. 9. 9 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 … www.brittontuma.com
  10. 10. 10 2 GeneralTypes 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 www.brittontuma.com
  11. 11. 11 Legislatures want to keep up  impossible  speed technology is evolving  speed culture and business environment changing  legislature too slow Example: • Spring 2012 - big ruckus was prospective employers asking for social media logins – the massive public outcry made it such that within months nobody in their right mind would do that • Aug 2014: 20+ state passed or pending legislation prohibiting www.brittontuma.com
  12. 12. 12www.brittontuma.com
  13. 13. 13 Look to Common Law  contract law  intellectual property law  torts – defamation  regulatory law  employment law  evidence law www.brittontuma.com
  14. 14. 14 You can’t protect against what you don’t know, so let’s apply this “law stuff” to the real world … www.brittontuma.com
  15. 15. 15 Who uses social media for marketing?  do you want to give your marketing efforts to your competitor?  who really owns the accounts?  followers / connections?  each service or site has a contract  contract law  Case Study: PhoneDog v. Kravitz www.brittontuma.com
  16. 16. 16 “an ounce of prevention is worth a pound of cure”  PhoneDog = employer; Kravitz = employee (product reviewer / blogger)  Kravitz = @PhoneDog_Noah had 17,000 followers  Kravitz resigned, refused to turn over hisTwitter account, changed handle to @noahkravitz and grew to 24,000 followers  PhoneDog sued (7/15/11), heavy litigation, settled (12/12) = 1.5 yrs of fees & Kravitz still has @noahkravitz  THETAKEAWAY: Every company needs a contractual agreement that clearly states who owns social media accounts used on behalf of the company. It is that simple. Such an agreement can usually be included in an employee handbook, employment policies, or a social media policy.The cost of such an agreement will likely be cheaper than the very first day of litigation if a dispute arises over that issue. www.brittontuma.com
  17. 17. 17 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  Case Study: Geolocation data www.brittontuma.com
  18. 18. 18  2007 – fleet ofAH-64 Apache helicopters  Soldiers’ photos had geotags with exact coordinates  Insurgents used geotag coordinates for a mortar attack that destroyed 4  US Military uses  Malaysia Airlines Flight 17  So do businesses! www.brittontuma.com source: http://defensetech.org/2012/03/15/insurgents-used-cell-phone-geotags-to-destroy-ah-64s-in-iraq/
  19. 19. 20 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 enough  DMCATakedown Request  Google penalizes for too many  must have a license or use creative commons  intellectual property lawwww.brittontuma.com
  20. 20. 21 Copyright Example www.brittontuma.com Attribution: prthugp @ http://www.officialpsds.com/prthugp-Profile9747.html License: Creative Commons Attribution 3.0
  21. 21. 22 Who wants to get sued some more?  what you (and your employees) say can hurt you! Case Study: Bland v. Roberts – “Like” = 1st Amendment  tortious interference  defamation (libel, slander, bus. defamation)  false advertising & false warranties  fraud & negligent misrepresentation  online impersonation  harassment and cyber-bullying  “puffery” of facts www.brittontuma.com
  22. 22. 23 Who wants to be investigated by the Feds?  FTC – deceptive trade practices  Investigated Hyundai for not disclosing incentives given to bloggers for endorsements.  Google (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 herVD 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 www.brittontuma.com
  23. 23. 24 Specific trouble spots for marketers?  Giveaways and contests can be trouble for many reasons – do not do them on social media without having it thoroughly vetted  some sites’TOS prohibit  jurisdiction gambling and contest rules  Example: Facebook’s PageTerms www.brittontuma.com
  24. 24. 25www.brittontuma.com
  25. 25. 26 What if someone is talking bad about your business on social media?  defamation rules apply online  but …  the “Streisand Effect”  anti-SLAPP (Strategic LawsuitsAgainst Public Participation)  ≠ assign copyright of reviews  ≠ charge $500 per bad review www.brittontuma.com
  26. 26. 27 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) www.brittontuma.com
  27. 27. 28www.brittontuma.com • “The law has a right to every man’s evidence.” • Courts look to social media for public posts, private messages, “Likes”, etc. • Club’s SM before Cowboys’ Josh Brent wreck killing Jerry Brown: “I have 12 #Cowboys in theeee building!!!!!!!!!! #Privae” … “These fools buying Ace on top of Ace!!!!!!!” • Danielle Saxton’s Facebook “selfie” wearing stolen merchandise – easy evidence! • Daughter’s $80,000 Facebook “brag” • If litigation is anticipated - • cannot permanently delete account, may be able to “take down” • cannot selectively delete posts
  28. 28. 29 MINIMIZING THE RISKS OF SOCIAL MEDIA IN BUSINESS
  29. 29. 30 • Monitor, Regulate & Archive SM  Necessary if regulated industry  finance, insurance, energy & utilities, healthcare, government, legal  Wise for others • Do not delete if in litigation (archiving may be an option) • Document Retention Policy www.brittontuma.com
  30. 30. 31 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 www.brittontuma.com
  31. 31. 32 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 www.brittontuma.com
  32. 32. 33 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 onTwitter where disproportionate number of people <40 yrs. onTwitter, may violate the Age Discrimination in EmploymentAct  requesting social media login information www.brittontuma.com
  33. 33. 34 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 www.brittontuma.com
  34. 34. 35 You need social media policies but the National Labor Relations Board is making it difficult  NLRB jurisdiction = impacts interstate commerce  National Labor RelationsAct (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)  Has continued – with several since then www.brittontuma.com
  35. 35. 36 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 www.brittontuma.com
  36. 36. 37www.brittontuma.com
  37. 37. 38www.brittontuma.com
  38. 38. 39www.brittontuma.com
  39. 39. 40www.brittontuma.com
  40. 40. 41 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 www.brittontuma.com
  41. 41. 42 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 www.brittontuma.com
  42. 42. 43www.brittontuma.com  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!
  43. 43. 44www.brittontuma.com

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