TurnsonPoint Consulting provides an introduction to legal risks in the emerging age of social media. They note that all laws apply to social media activities and that activities leave an online track record. [They summarize] potential legal issues like copyright infringement, trademark infringement, privacy violations, discrimination, reputational damage, and false advertising. The presentation emphasizes that social media requires understanding privacy policies and developing integrated strategies to manage legal risks.

1. TURNSONPOINT CONSULTING
BUSINESS AND LEGAL STRATEGY
AN INTRODUCTION TO LEGAL RISKS IN
THE EMERGING AGE OF SOCIAL MEDIA

2. Disclaimer statement
This presentation and related information have been prepared by
TurnsonPoint Consulting for information purposes only and do
not constitute advertising, a solicitation, or legal advice. Such
presentation, materials and information contained herein is not
intended to create, and receipt thereof does not constitute
formation of, an attorney-client relationship. The information
contained in this presentation is provided only as general
information and may or may not reflect the most current legal
developments; accordingly, this information is not promised or
guaranteed to be correct or complete. TurnsonPoint expressly
disclaims all liability in law or otherwise in respect to actions
taken or not taken based on any or all the contents of this
presentation or related information.

3. SOCIAL MEDIA – WHAT IS IT?
— “Social Media – It is where the Evidence Is”
Mayer-Brown, LLP March, 2011
Image by Trademark Sentinel

4. Commonality of the legal risks in Social
Media
— every law, every statute and regulation that applies to you as an
individual or a business is applicable.
— Old Wine in New Bottles – old causes of action can find a new
home in social media
— And – all of your activities are:
*trackable and traceable - cookies
*memorialized in discoverable form
*evidence – e discovery – any postings online should
be considered the same as email or text message – it is
discoverable and can lead to liability
available to millions

5. A sampling of what you or your business or
your clients can be sued for
— Copyright Infringement - freely copying what one see’s on
the Internet
— Trademark Infringement – confusing consumers about a
brand
— 1st Amendment -Posting of inappropriate or offensive content;
online speech (harassment)
— Title VII; various state laws-Discrimination in hiring; monitoring
of employees
• Reputational Damage-when negative information released is
not contained and acted upon quickly, it can spiral out of control.
In 24 hours, a video can be viewed more than ten thousand times,
an article shared thousands of times through Facebook; Twitter

6. A sampling of what you or your business or
your clients can be sued for (cont’d.)
— Invasion of Privacy – U.S. and International
U.S. – PII (personally identifiable information)
International – EU Data Protection Directive 1995/46 EU
amended 2011
-Proprietary and confidential information
NDA; legal agreements; trade secrets
-Defamation/false light
Example: Twitter is not liable but you or your business or
your client’s company can be
Simorangkir v. Love
§ False Advertising - liability for failing to disclose material
connection with endorsers – FTC Guideline (16 CFR § 255)

7. Privacy; Intellectual Property; Online
Advertising
1. Privacy
— are postings on social media sites private?
o A public posting on a public site is generally not private
o A posting may be private if it is on a password protected site
• Can an employer check up on employees through
social media?
o LinkedIn to verify information supplied by an applicant
o Twitter, Facebook posting that may be viewed as harassment of
other employees (Espinoza v. County of Orange, 2012 WL
4201149 (Cal.App.Ct. Feb. 9, 2012)
o Michigan Asst. Attorney General terminated for harassing first
openly gay president of U of M.
Image by Tamsandroid

8. Privacy; Intellectual Property; Online
Advertising (cont’d.)
o Cannot use information to discriminate against employees or
candidates due to race, religion, sexual orientation, marital
status, pregnancy, political affiliations, disabilities (Title VII and
various state laws) and CANNOT be the basis of the decision –
need to be able to prove that.
Examples of famous tweets “Cisco just offered me a job! Now I
have to weigh the utility of a fatty paycheck against the daily
commute to San Jose and hating the work”’ Ketchum public-
relations exec. Who said of client FedEx’s hometown: “I would
die if I had to live here!”

9. Privacy; Intellectual Property; Online
Advertising (cont’d.)
• Can an employer monitor employee activity online to
assess if there is a problem with information being
leaked, or inappropriate messages be posted?
Be cautious: California, Colo., New York, North Dakota
don’t allow adverse employment actions for legal off-duty
conduct
-could lead to invasion of privacy claims
-risk of discrimination, retaliation, and whistleblower claims
California, Colo., Indiana, Oklahoma, South
Carolina and Utah require employer to obtain consent before
monitoring
Image by Online Reputation Management

10. Privacy; Intellectual Property; Online
Advertising (cont’d)
2. Intellectual Property
A. Copyright
Who owns the Copyright material posted on Social
Media?
The original author owns the copyright to anything
posted on Social Media
Digital Millennium Copyright Act (DMCA)-limits
liability for service providers (Facebook; LinkedIn
through an imposed notice-and takedown-regime)
Pinning Copyright Complaints on Pinterest

11. Privacy; Intellectual Property; Online
Advertising (cont’d)
B. Trademarks – TM, ®
• Infringement on social media sites takes a variety of
forms, including faux, imposter, parody, and fan accounts,
as well as improper use of logos on profile pages
• There may be liability for creating a user name or
tradename that confuses other users about your
relationship to a Trademark owner, or dilutes a trademark
owners brand
• Brand owners can typically file notices of (non-copyright)
IP infringement on social media platforms [summary sheet]

12. Privacy; Intellectual Property; Online
Advertising (cont’d)
o Brand owners can file DMCA takedown notices on all major social media platforms
[summary sheet]
B.1 Trademark Infringement on Twitter
o Danyelle Freeman is a restaurant critic for the New York Daily News using the name
“Restaurant Girl”; Adam Robb Rucinsky uses Freeman’s writing style and Freeman’s
name “Restaurant Girl” for a writing exercise using Twitter and a Blog
o Freeman is claiming that Rucinsky’s Twitter account and blog impersonating
Freeman is infringing on her trademark name
o The question is whether readers would be able to t ell whether they are reading
Freeman’s or Rucinsky’s blog, despite his recent disclaimers on Rucinsky’s Twitter
and blog accounts
o Does Rucinsky have a valid parody defense?

13. Privacy; Intellectual Property; Online
Advertising (cont’d)
B-2. Trade Secrets
Can be easily leaked on social media
• An employee leaking Trade Secrets has breached the
duty of loyalty, misappropriation of Trade Secrets,
breach of contractual confidentiality, or non-
disclosure agreements, which can be grounds for
termination
• What happens if a Trade Secret is leaked?
• Trade secret protection is based on “reasonable
efforts” to keep information secret
• Once leaked, it is fair game
Image by Howtomakemoneyblogging.net

14. Privacy; Intellectual Property; Online
Advertising (cont’d)
3. Online Advertising
FTC Guidelines for online Advertising
FTC Act’s prohibition on “unfair or deceptive acts or
practices” broadly covers advertising claims, marketing and
promotional activities, and sales practices in general.
q This Act is not limited to any particular medium
Therefore applies to the Internet
Rules prohibit specific acts or practices that the FTC has
found to be unfair or deceptive
Image by ATXPublishing

15. Privacy; Intellectual Property; Online
Advertising (cont’d)
— Guidelines help businesses to comply with the law by providing examples or
direction on how to avoid unfair or deceptive acts or practices – find guidelines
for ads at….
— Online ads are subject to the basic principles of advertising law
— Advertising must be truthful and not misleading
— Advertisers must have evidence to back up their claims
— Advertisements cannot be unfair
must look at the ad as a whole

16. Privacy; Intellectual Property; Online
Advertising (cont’d)
Tweets, Facebook and other social media can qualify as
endorsements and testimonials in advertising and therefore can
be subject to FTC rules and guidelines
FTC Guides concerning Use of Endorsements and Testimonials
in Advertisements:
http://www.ftc.gov/bcp/guides/endorse.htm
False Advertising
o Federal/state laws apply equally to traditional and new media platforms
o Some social media platforms also have advertising policies to prohibit false or
misleading advertisements
New Guidelines coming?
FTC suggesting that bloggers and social media marketers who use
false statements about products they promote will be held liable

17. Take Aways
1. No one is immune to the risks to their personal and
professional lives associated with living and operating in
the Digital Era
2. Read carefully the privacy policies/terms of use of all social
media sites you are going to use so you are aware of your
risks if you violate those policies
3. Develop an integrated business and legal strategy social
media policy that meets either or both your internal and
external needs

18. For more conversations……….
Contact Me:
Judith Delaney
judith@turnsonpoint.com
1-415-244-1360
www.turnsonpoint.com