This document summarizes the evolution of social media and risks associated with sharing information on platforms like Facebook. It discusses how people have shared photos over time, from printing to emailing to sharing on social networks. Facebook now has over 400 million active users who create 70 pieces of content each month on average. The document outlines strategies for managing risks associated with user generated content on Facebook, including legal issues around photo consent, privacy, and copyright. Canadian court cases are referenced that relate to producing Facebook profiles and content as evidence.

1. Jean-Paul Rains, H.B. Comm1Risk Management on Facebook

2. Social Media Biography2Laurentian University JP LaurentianICQ 1998Windows Messenger 2002Facebook 2006Twitter 2009Foursquare 2010

3. Evolution of sharing information32000, we shared printed pictures2004, we e-mailed digital pictures 2006, we shared pictures on Myspace, MSN2008, we upload to facebook and tag our friends More than 400 million active users on FacebookAverage facebook user creates 70 pieces of content each month

4. Risk Management on Facebook4Social Media PlanWhere we were headedFind us on FacebookThe rules of engagementFacebook in the news“I lost my job because of facebook”User Generated Content Implications“Mind if I take a picture of you?”Risk Management StrategiesRecommendations

5. Social Media Process5Establish GoalsEngage current students and alumniAppeal to prospective studentsEngage and appeal through contentHigh level of interaction Produce content for membersCorporate content User generated content

6. User Generated Content Implications6

7. The User7“Users want and need to socialize, and they act in privacy-risking ways because of it. We cannot and should not beat these social urges out of people; we cannot and should not stop people from acting on them. We can and should help them understand the consequences of their socializing, make available safer ways to do it, and protect them from sociality hijackers.” - Associate Professor, New York Law School, James Grimmelmanin the Iowa State Law Reviewhttp://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=james_grimmelmann

8. The User884% of young adults 18-24 thought people should have their permission before posting photos/videos.“policy discussions should acknowledge that the current business environment ... sometimes encourages young adults to release personal data in order to enjoy social inclusion...” – research from the University of California, Berkeley and the University of PennsylvaniaArticle: http://www.theglobeandmail.com/news/technology/personal-tech/tech-savvy-generations-care-about-privacy-study-finds/article1536603/?cmpid=rss1

9. “Game on: wait, you know our house rules, right?”9Facebook Terms of Services

10. Facebook Terms of Services10Where you can find it…

11. Facebook Terms of Services11“Please keep in mind that the owner of a photo determines the privacy of that photo. If other users are able to view photos you are tagged in, then it is because the owner of the photos has most likely set the privacy of the photo album so that everyone can see the photos in it. While there is the option to block users from viewing the tagged photos section on your own profile, there is no way to restrict the visibility of a photo that you are not the owner of.”Source: http://www.facebook.com/terms.php

12. Facebook Terms of Services12

13. Facebook Terms of Services13Electronic Frontier Foundation www.eff.orgEvil Interfaces: “Act of creating deliberately confusing jargon and user interfaces which trick your users into sharing more info about themselves than they really want to” – Lee Tien, State of the Net Survey.Expectation mismatch due to their first privacy, to their very public. “…Users jumped in when water was cold, now the water is boiling and some (users) are getting cooked” – Tienhttp://www.eff.org/deeplinks/2010/04/facebooks-evil-interfaces

14. Facebook Terms of Services14“So, while I hope we can maintain our optimism about the potential social benefits to be found in the virtual worlds that feature user-generated content, we should be aware that these are two separate phenomena… the future of this promising partnership is fraught with uncertainty.” - Steven Hetcher, Professor of Law, Vanderbilt University Law Schoolhttp://heinonline.org/HOL/Page?handle=hein.journals/vanep10&div=34&g_sent=1#871

15. “What do you mean you can see my photos?”15Facebook in the News

16. Facebook in the News16Examples from some of the first Facebook cases in the courtroom“Canadian courts have considered web-based networking sites such as Facebook and MySpace pages to be ‘documents’….In fact, a recent Ontario decision has held that it is now incumbent on lawyers to specifically raise the issue of Facebook profiles with their clients and explain that any relevant material that is posted on such sites will need to be produced in litigation….” - Richard J. BortnickJuris Doctorate of Villanova University School of Law Article:http://cyberinquirer.com/?p=207Case cited: http://www.canlii.org/en/on/onsc/doc/2009/2009canlii6838/2009canlii6838.pdf

17. Facebook in the News17Royal & Sun Insurance Co. of Canada asked a judge to order that a client preserve the contents and photos on her Facebook page, and then hand them over, including the parts of apage was set to “private” that could only be viewed by 67 approved friends.Mr. Justice David Price denied the insurer's request, ruling that Royal & Sun had failed to prove the page included relevant materialArticle Facebook pokes limits of personal-injury lawCase cited: http://www.canlii.org/en/on/onsc/doc/2009/2009canlii58971/2009canlii58971.html

18. Facebook in the News18Contrastingly… Last year a Canadian court ruled that a defendant in a motor vehicle action could compel Facebook evidence from a plaintiff even though he had implemented privacy settings restricting access to his profile. In this case the court deemed the photos to be relevant to the procedure. “A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly available profile,” a justice for the Superior Court of Justice for Ontario ruled. “Any invasion of privacy is minimal and is outweighed by the defendant's need to have the photographs in order to assess the case.”Article: http://www.law360.com/articles/147130Case cited http://www.lawsonlaw.ca/leduc-v-roman-facebookRady, J. in Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.).

19. Facebook in the News19In 2008 an Ontario University was the subject of a Facebook related lawsuitA student created a group, discussed assignments and was then failed from the class and recommended to be expelledLawsuit was based around legal representationSource: http://network.nationalpost.com/NP/blogs/posted/archive/2008/03/06/university-student-faces-expulsion-for-facebook-study-group.aspx

20. Facebook in the News20Teachers suspended from workplace for photos on facebook http://www.abc.net.au/news/stories/2010/04/20/2877654.htm?section=justinHigh school students suspended for photos http://www.startribune.com/local/west/13549646.htmlStudent expelled for facebook status http://www.yppo.com/2010/04/04/the-status-update-that-got-a-student-expelled-from-school/Prof placed on leave for status update www.usatoday.com/news/education/2010-03-02-facebook-professors_N.htm

21. Facebook in the News21In a survey of 350 US employers by Vault.com44% of employers use social-networking sites to examine the profiles of job candidates39% have looked up the profile of a current employee

22. “My friends won’t mind if I upload this”22User Generated Content

23. User Generated Content23Are pages protected by the Charter of Rights and Freedoms? Do we really need photo consent? Where does copyright factor in? Proposed changes to Facebook’sTerms of Service

24. Rights and Freedoms24Canadian Charter of Rights and Freedoms – Fundamental Freedoms1.2 (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;This law applies only as it does not supersede privacy laws. Currently, not aware of any facebook lawsuits specifically related to photo consent

25. Photo Consent Case25In one of the most well-known Canadian photo consent cases, a female in a public area was the subject of a published photo. She was not aware that the photo was taken or that the photo was published, until a friend informed her. She then sued the publisher for invasion of privacy, and won at every level. Source: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii817/1998canlii817.html

26. Photo Consent Case26“if the purpose of the right to privacy...is based on...the control each person has over his or her identity... this control implies a personal choice." "(there is) an infringement of the person's right to (privacy)...as soon as the image is published without consent and enables the person to be identified." - Supreme Court of CanadaSource: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii817/1998canlii817.html

27. Photo Consent Case27The Court then went on to reject a body of law that exists in this area in the United States. That US law states that the publication of a photo without consent is permitted if it serves a "socially useful" purpose. The Court also rejected the notion that the right to publish a photograph ought to be given precedence over the individual's right to remain private due to the logistical difficulties in obtaining consentSource: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii817/1998canlii817.html

28. Photo Consent Case28"… the right to protection of her image is more important than the (photographer's) right to publish the photograph...without first obtaining her permission." - Supreme Court of CanadaSource: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii817/1998canlii817.html

29. Where does Copyright come in?29The copyright act liability for infringement“35: Where a person infringes copyright, the person is liable to pay such damages to the owner of the copyright as the owner has suffered due to the infringement and, in addition to those damages, such part of the profits that the infringer has made from the infringement and that were not taken into account in calculating the damages as the court considers just.”Source: http://laws.justice.gc.ca/en/C-42/FullText.html

30. Proposed Changes30Privacy Commissioner of CanadaFrom February 2009 recommendations“Recommendation 22: Non-users should not be able to be tagged in photographs posted to the site. Recommendation 24: Photos should not be taggable by default – users should have the ability to select whether or not photos may be tagged…”http://www.priv.gc.ca/information/pub/sub_comp_200901_e.cfm#toc5d

31. Proposed Changes31When can we expect these changes?The changes were recommended in February 2009 based on data from 2008 Facebook announced changes in August 2009 with implementation over 12 months Turnaround time is approximately 2 yearsSource http://www.facebook.com/press/releases.php?p=118816

32. Pressure from Users32“We are going to be providing options for users who want simplistic bands of privacy that they can choose from and I think we will see that in the next couple of weeks.”- Tim Sparapani, Facebook’s chief of public policy, said in a radio interview (May 18th) Yesterday, Facebook announced the simplification of the opt-out procedureshttp://mashable.com/2010/05/18/facebook-simple-privacy/http://mashable.com/2010/05/27/facebook-privacy-video/

33. “Risk is like fire: If controlled it will help you ; if uncontrolled it will rise up and destroy you.”33Risk Management

34. Risk Management34Strategies to control risk: Internal Social Media GuidelinesExternal Facebook PolicyDisclaimerPhoto Consent for user generated content

35. Where are we?35Very few Canadian institutions have an external policySome US-based institutions have policyLeaders like Ohio State, University of Florida, Stanford University and UCLA to name a fewTwitter: “Risk Mgmt policies thanks @davidshipleyhttp://bit.ly/bPYPwW ”

36. Ohio State – Internal Guidelines36

37. University of Florida 37

38. StanfordUniversity38

39. UCLA39

40. Summary40Although facebook and social networking sites in general pose risk to our institutions there are measures that can reduce your riskWe are currently developing our external and internal social media policies at Laurentian University

41. Disclaimer41The information on this paper is not intended to constitute legal advice. This paper should not be used as a substitute for legal advice from a licensed lawyer in your state, province or country. Please take this information as an opinion based on research and take it upon yourselves to initiate an internal investigation within your institution.

42. Contact Information42If you have any questions or comments, please contact me through my facebook profile or e-mailwww.facebook.com/jplaurentianwww.twitter.com/jp_laurentianhttp://ca.linkedin.com/in/jprainsjl_rains@laurentian.caSlideshow at