Get it straight from the experts: Learn what you should and shouldn't do, gray areas and potential legal pitfalls in the ever emerging world of social media.

1. Keeping it Legal
on Social Media
Social Media Club of Kansas City
January 8, 2016

2. Today’s Agenda
• The Basics
• New Frontiers
• Grace and Disgrace Under Pressure
• Recovering from Social Media Crisis

3. Meet Your Presenters
• @amyjwooden
• Principal, AJW Consulting
• Her brand is crisis
• @katiehollar
• Chief Marketing Officer, Shook Hardy & Bacon
• Her brand is legal marketing
• Her alter ego is Miranda Rights

5. Disclaimer
• We are not attorneys. We pride ourselves on
communications experience, common sense and offbeat
but reasonable senses of humor.
• This presentation is intended to convey basic information
and food for thought. It is NOT legal advice.
• When in doubt, call your attorney.

6. Disclaimer 2
• This presentation includes case studies (and cautionary
tales). Some of these involve untoward language and/or
unfortunate circumstances.
• While we are showing some extreme examples for their
educational benefit, we acknowledge that the social
media tools we use can cause harm and embarrassment.
Loss of a job or reputation is serious, and we take the
power of social media seriously.

7. The Basics

8. Defamation
• Occurs when a person intentionally spreads information about
another person, group or company that damages their
reputation
• Actionable regardless of the medium
• A person who did not create the defamatory material but only
shares it can be liable
• Several defenses, including that the statement was true or the
expression of honest opinion
• Internet service providers and social media sites NOT liable

9. Scared Straight: Defamation

10. Hostile Work Environment
• Unwelcome conduct based on race, color, sex, religion,
national origin, disability and/or age
• Employers can be liable if:
• A supervisor harasses an employee
• A coworker is the harasser
• Knew or should have known?
• Action to prevent it?

11. Scared Straight: Harassment

12. Healthcare Privacy and HIPAA
• Covered entities must comply with the Privacy and Security
rules in HIPAA
• Healthcare providers
• Health plans
• Health care clearinghouses
• Who is not covered?
• Employers (generally)
• Your friends/colleagues
• News reporters
• *Other privacy concerns, not HIPAA

13. Scared Straight: HIPAA

14. Genetic Information Nondiscrimination Act
• Prohibits employers, employment agencies and labor
organizations from discriminating against employees based on
genetic information
• Requires these groups to keep genetic information in separate
files and treat as confidential medical record
• Prohibits these groups from disclosing a worker’s genetic
information
• Deliberate acquisition – illegal
• Inadvertent learning – not illegal
• Exception – commercially and publicly available information

15. Scared Straight: GINA
• New frontier - .4 percent of Equal Employment
Opportunity Commission claims in 2014
• First case went to trial in August 2015
• Underscores that DNA privacy is paramount
• “You can’t use genetic information to fire people – even if
they are literally pooping on the floor in a place where food
is stored.” – The Atlantic
• Consider wellness, wearables and well-wishes…

16. Discrimination
• Hiring, firing, opportunities and more
• Screening processes – are you learning things you
wouldn’t ask in an interview?
• Carnegie Mellon study in 2013:
• Up to one-third of businesses screen applicants on social media
• Muslim candidates were less likely to be called for interviews than
Christians
• In conservative areas, Christian applicants got callbacks 17% of the
time – Muslims 2%

17. Scared Straight: Discrimination

18. Copyright
• The holder of a copyright has exclusive rights to publish
his or her own work
• Don’t share media without permission – music, video,
songs or infographs
• Contact the owner
• Contact the Copyright Clearance Center – copyright.com
• Giving credit does NOT protect from infringement claims

19. Copyright
• Fair use
• Can apply if use is nonprofit, educational or personal
• Does NOT apply if use is to promote a good or service
• Copyright holder can file for statutory damages without
proving any harm

20. Source: The Visual Communication Guy
Just use this simple chart!

21. Scared Straight: Copyright

28. Photo by Rachel Scroggins
Instagram: @thegreyestsghost
www.greyestghost.net
rpscroggins@gmail.com

29. Endorsements
• Most marketers don’t know FTC basics:
• IZEA survey in 2014: 29% of marketers unaware of disclosure
rules; only 10% understand
• Read the FTC guidelines!
• When in doubt, disclose
• Videos – at the beginning and preferably repeated
• Twitter – ““The words ‘Sponsored’ and ‘Promotion’ use only 9
characters. ‘Paid ad’ only uses 7 characters. Starting a tweet
with ‘Ad:’ or ‘#ad’ – which takes only 3 characters – would
likely be effective.”

30. Scared Straight: Endorsements

31. Sweepstakes
• When a contest entry is accompanied by an
endorsement on social media, a disclosure is required
• The responsibility falls on the contest sponsor to require
disclosure
• Must be obvious:
• #Contest or #Sweepstakes is sufficient
• #AJWConsultingAmazeballs is not

32. Scared Straight: Sweepstakes

33. New Frontiers

34. Fictitious Profiles
AvePoint Inc. v. Power Tools, Inc. (Axceler)
•Solidified ability of competitors injured by fake social
profiles to bring trademark/advertising claims
•Scrum included:
• False tweets that products were made in China
• Fake LinkedIn profile for fictitious employee
• “Jim Chung” encouraged viewers to contact him for deals with
AvePoint…but directed them to Axceler

35. Partially Quoted Tweet = Defamation
Franklin v. The Daily Holdings – a tweet excerpt can give rise to a
defamation claim
•Lawsuit stemmed from a nightclub fight
•Plaintiff tweeted “I was gonna start shooting in the air but I
decided against it. Too much violence in the hip-hop community.”
•Defendant’s article quoted first sentence ONLY
•Plaintiff:
• Changed tone from “eschewing violence to one that made it look as if
plaintiff were a gun-toting psychopath”

36. Employee Profanity Protected
Three D LLC d/b/a Triple Play Sports Bar and Grille v. NLRB
•Upheld determination that the employer unlawfully
terminated two employees
• One was fired for profanity – calling her boss an ***hole
• One was fired for “liking” a former employee’s “WTF” post
about incorrect tax withholdings
•Board found Facebook actions were “protected concerted
activity” about terms and conditions of their employment
• Reinstatement and back pay

37. Consumer Reviews in Advertising
• EuroPro Operating LLC – Shark vacuums
• National Advertising Division found EuroPro could not
use online reviews to support claims to be “America’s
Most Recommended Vacuum Brand” or say it had “more
five-star online ratings”
• Aggregation of reviews “inherently problematic” and
results not sufficiently reliable for claims purposes

38. Social Accounts = Assets in Bankruptcy
• Tactical Firearms went bankrupt; after its purchase out of
bankruptcy, former owner changed social media
accounts to “Jeremy Alcede Entrepreneur” and
@jeremyalcede
• In April 2015, a bankruptcy judge said he must hand over
control of the store’s social accounts to the reorganized
company
• Accounts considered part of the Chapter 11 estate
• Compared to subscriber lists – “material value to the
business”
• Mr. Alcede vowed hunger strike to protest ruling

39. Social Media & Crisis

40. Role of Social Media in a Crisis
• Break news
• Spread misinformation
• Attack channel
• Mobilize advocates
• Dispel rumors
• Allow venting

43. Beware the “One Click Crazy”

45. AJW’s Crisis Guidelines
• Speed and accuracy are equally important
• Cover-up is always worse than the crime
• Legal strategy then PR strategy
• One voice
• Humanize the situation
• Implement action items = closure

46. Thank You