This presentation provides an overview of social media law, that is, the legal issues involved in using social media. The presentation provides practical examples of how those issues come about in the business world and provides ways to minimize the risks associated with those issues, including the use of social media policies.

1. SOCIAL MEDIA LAW
The Legal Do’s and Don’ts
of Social Media
Presented for
TrustPoint Management Group
August 10, 2012

2. Tweet it up:
#socialmedialaw
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3. Notes
1. Add Pictures
2. Streamline sections – 45 minutes
3. Insert Copyright
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4. 4

5. WHAT IS
SOCIAL MEDIA LAW?
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6. Social Media Law:
The law that applies to and
governs the use of social media.
(was that all you really wanted to know?)
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7. Social Media Law:
 inherent risks
 natural tension between legal and marketing
 BUT!!!
 I am “sold out” on social media and an avid
user … and I don’t want to get sued either …
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8. My Goal:
 find an acceptable balance
 educate you on risks of using social media, along
with other digital business risks
 help show you some ways to minimize those risks
 Remember: social media is a tool – what you say and
do is much like “real life”
 “Real life” rules still apply – use your common sense!
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9.  what is social media law
 traditional areas of law incorporated
 practical examples of how they arise
 how to minimize the risk
 can’t eliminate, only minimize
 social media policies
 workplace training and guidance
 cyber-insurance
 other digital business risks
 data breach & hacking
 computer fraud / Computer Fraud and Abuse Act
 Q&A
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10. 2 General Types 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
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11. Legislatures want to keep up
 impossible
 speed technology is evolving
 speed culture and business environment changing
 legislature too slow
example:
last spring the big ruckus was prospective
employers asking for social media logins –
the massive public outcry made it such that
nobody in their right mind would do that now
this past week, Illinois became one of 2 states
to enact a law prohibiting this; eff. date:
1/1/13
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13. Look to Common Law
 contract law
 intellectual property law
 torts – defamation
 regulatory law
 employment law
 evidence law
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14. You can’t protect against what you
don’t know, so …
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15. Who uses social media for marketing?
 do you want to give your marketing efforts to
your competitor?
 who really owns your account
 followers / connections?
 “an ounce of prevention is worth a pound of
cure”: PhoneDog v. Kravitz (7/15/11)
 each service or site has a contract
 contract law
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16. 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 and strategies
 secret business initiatives and plans
 business situational awareness
 intellectual property law: trade secrets
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17. Who wants to get sued?
 infringement of trademark
 infringement of copyright
 DMCA Takedown Request
 right to publicity
 name, voice, signature, photo, likeness (statutory after death)
 common law while living if for value
 must have a license or use creative commons
 intellectual property law
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18. Who wants to get sued some more?
 what you (and your employees) say can hurt you!
 business disparagement
 tortious interference
 defamation (libel & slander)
 false advertising & false warranties
 fraud & negligent misrepresentation
 harassment and cyber-bullying
 “puffery” of facts
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19. Who wants to get investigated by the
Feds?
 FTC – Investigated Hyundai for not disclosing incentives
given to bloggers for endorsements.
 HHS & OCR – could have investigated hospital employee
who posted patient pictures and “PHI” on Facebook (“it’s
just Facebook!”)
 SEC – false statements made in raising funds (SEC v.
Imperia Invest. IBC) or wrongful disclosures of information
 regulatory law
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20. What are some real trouble spots?
 Giveaways and contests can be trouble for many
reasons – do not do them on social media
without having it thoroughly vetted
 many sites’ TOS prohibit
 jurisdiction gambling and contest rules
 Employment issues are one of the main areas in
which legal and general business problems arise
 Discussed in next section
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21. Can you guess what will be used against you if
any of these problems arise?
 social media is evidence – very powerful evidence!
 electronically stored information (“ESI”) is quickly
becoming the most useful form of evidence
available
 evidence from social media is now obtained and
used in virtually every kind of lawsuit and
investigation
 we now have complete records of 2-way
communication stream – like all calls recorded!
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22. MINIMIZING THE
RISKS OF SOCIAL
MEDIA IN BUSINESS
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23. 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
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24. 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 on Twitter where
disproportionate number of people <40 yrs. on
Twitter, may violate the Age Discrimination in
Employment Act
 requesting social media login information
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25. Employment Issues
 using social media for the company
 scope of work for duties and times
 e.g., overtime for weekend “Facebooking”
 personal or company owned accounts / followers
 familiarity and compliance with site Agreement / TOS
 what is authorized / prohibited
 responsibility for statements / disclosures
 monitored
 saying “use good judgment” is not enough!
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26. 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
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27. You need social media policies but the National
Labor Relations Board is making it difficult
 NLRB jurisdiction = impacts interstate commerce
 National Labor Relations Act (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)
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28. 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
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32. 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
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33. MINIMIZING OTHER
DIGITAL BUSINESS
RISKS
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34. 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
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35. Customer Information – do you retain it on your
system?
 Data Breach
 Effective 9/1/12, if you conduct business in Texas and your system
is breached and your customer’s unencrypted “sensitive personal
information” is, or is reasonably believed to have been
compromised, must notify all Texas residents of breach.
 The notice must be given “as quickly as possible” and failure or
delay in doing so results in a fine of $100.00 per individual per day
(not to exceed $250,000)
 Notice may be made through written or electronic means though
it can be given by major media outlets if the cost of providing
notice exceeds $250,000 or the number of persons exceeds
500,000
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38. Why is the Computer Fraud
and Abuse Act important?
 Primary Law for Misuse of Computers
 Computers …
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39. “Everything has a
computer in it nowadays.”
-Steve Jobs
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40. The CFAA says
has a processor or stores data
“the term ‘computer’ means an
electronic, magnetic, optical, electrochemical, or other high
speed data processing device performing logical, arithmetic, or
storage functions, and includes any data storage facility or
communications facility directly related to or operating in
conjunction with such device, but …”
“such term does not include an automated typewriter or
typesetter, a portable hand held calculator, or other similar
device;”
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41. What about
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42. The CFAA applies only to “protected” computers
This may limit the problem of applying it to alarm
clocks, toasters, and coffee makers
Protected = connected to the Internet
Any situations where these devices are connected?
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43. • TI-99 • Leap Frog Leapster • iPhone 4
• 3.3 MHz Processor • 96 MHz Processor • 800 MHz Processer
• 16 KB of RAM • 128 MB of RAM • 512 MB of RAM
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44. The CFAA prohibits wrongfully accessing
a computer where the access
 Obtains information
 Commits a fraud
 Obtains something of value
 Transmits damaging information
 Causes damage
 Traffics in passwords
 Commits extortion
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45.  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!
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