Final fleck law techcamp 2011_social media_jun 18 11


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Social media has revolutionized marketing and how businesses can promote their brands. While social media presents a novel marketing channel, as with any innovation, there are risks. A comprehensive social media policy can assist businesses in managing risk exposure from using social media by addressing key issues such as privacy and intellectual property law. This presentation will address and provide practical tips on risk management in social media by addressing why social media policies matter, and the key issues that a social media policy should address.

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Final fleck law techcamp 2011_social media_jun 18 11

  1. 1. An Ounce of Prevention isWorth a Pound of Cure: KeyElements for Social Media Policies Lorraine M. Fleck lawTechcamp 2011 June 18, 2011 These slides do not constitute legal advice.
  2. 2. Overview1. Why do social media policies matter?2. What should a social media policy address?
  3. 3. Why do social media policies matter?Social media has changed the speed and controlof marketing.
  4. 4. Why do social media policies matter?Social media policies can assist in protecting: Reputation; Privacy; Physical security; and Intellectual property (IP).
  5. 5. Why do social media policies matter?Reputation Yours. Others.
  6. 6. Why do social media policies matter?Privacy Hot button issue. Mainly the privacy of others; can relate to your organization’s privacy as well. Relates to your organization’s reputation.
  7. 7. Why do social media policies matter?Physical security Relates to privacy. Both yours and others. “Digital exhaust” can reveal physical location. E.g., “Creepy” app
  8. 8. Why do social media policies matter?Intellectual property (IP) Yours. Others.
  9. 9. What are the sources of risk? User generated risks. Employee generated risks. Other sources of risks.
  10. 10. What should a social media policy address?Generally: Privacy; Intellectual property; Employee’s internal and external use; and Defamation.Also: follow the policies of the social medianetwork you are using.
  11. 11. Privacy Privacy laws (e.g. Personal Information Protection and Electronic Documents Act (PIPEDA) are breached when a user’s personal information is collected, used or disclosed without the appropriate consent.Best Practices Written consent is key!
  12. 12. Intellectual PropertyCopyright Right to reproduce content and stop others from reproducing content; permission to reproduce required unless activity falls within an infringement exception.
  13. 13. Intellectual propertyCopyright Copyright infringement exceptions (“fair dealing”) under specific circumstances: 1. Research/private study. 2. Criticism/review 3. News reporting. Exceptions do not apply to advertising. Parody NOT an exception in Canada.
  14. 14. Intellectual propertyCopyright - Moral Rights Moral rights (right of author attribution and integrity of copyrighted work) can bar altering content. Moral rights cannot be transferred, but can be waived.
  15. 15. Intellectual propertyCopyright - User Generated Content (UGC) Because of copyright and moral rights, if you are using UGC, you must obtain the right to use/modify the content. Risk that UGC may not be truly “user generated”, and may violate other’s copyright and moral rights.
  16. 16. Intellectual propertyCopyright: Best Practices Get written permission to use content unless activity falls within an infringement exception. Get a written waiver of moral rights.
  17. 17. Intellectual propertyCopyright: Best Practices If dealing with UGC, obtain: 1. The rights to use/modify the content by written transfer of ownership or perpetual, royalty free license with moral rights waiver; and 2. Indemnity against third party copyright and moral rights violations.
  18. 18. Intellectual propertyTrade-marks The owner of a registered trade-mark has the exclusive right to use that mark in respect of specific goods and/or services. One cannot “use” a trade-mark in a manner that depreciates its value or goodwill (e.g. posting disparaging/defamatory comments).
  19. 19. Intellectual propertyTrade-marks Depending on the circumstances, displaying a trade-mark in social media may constitute “use”, meaning you could get sued for trade- mark infringement, passing off, or depreciation of goodwill.
  20. 20. Intellectual propertyTrade-marks: Best Practices If you are launching a campaign with new trade-marks, make sure the trade-marks are available to use. See if you can register your trade-marks on the major social media platforms (e.g. Facebook, Twitter, MySpace) to avoid unauthorized accounts.
  21. 21. Intellectual propertyTrade-marks: Best Practices Obtain trade-mark registration(s) for long- term marks as a “sword or shield” mechanism. Ensure that other’s marks are not “used” and disparaging/defamatory comments are not posted regarding other’s brands.
  22. 22. Employees Employers may be liable for employee’s statements if made during scope of employment. Risk can come from employees’ use at and outside of work. Beware the overzealously loyal employee making a PR crisis worse!
  23. 23. Employees Disgruntled current or former employees can defame your organization, causing damage. Employees may post comments about employer’s products and/or services without disclosing relationship. Employees may release confidential information without thinking of the consequences (e.g. Twitpics of visiting celebrities).
  24. 24. EmployeesBest Practices Have a social media policy that applies to everyone – from the mailroom to the CEO. Have marketing and legal work together to draft the policy – no silos! Acknowledge that employees may use social media outside of the office, but make them aware of the risks to them and your organization that could arise from such use.
  25. 25. EmployeesBest Practices Authorize a limited number of users to post on your organization’s behalf, who cannot respond to complaints unless authorized. Educate authorized users and all employees on what they can and cannot post.
  26. 26. EmployeesBest Practices Have a list of social media user names and passwords in the event an employee leaves. Restrict access to that list on a “need to know” basis.
  27. 27. DefamationWhat is defamation? Oral or written words which tend to lower a person in the estimation of others or cause a person to be shunned, avoided or exposed to hatred, contempt or ridicule.
  28. 28. Defamation What is required for a successful defamation claim? 1. The words are defamatory; 2. The defendant communicated the words to third persons (e.g. publication); AND 3. The plaintiff is the one defamed.
  29. 29. Defamation What defences are there to a defamation claim? 1. Truth. 2. Fair comment. 3. Responsible communication. 4. Innocent disseminator.
  30. 30. DefamationBest Practices If you or your employees don’t have anything nice to post and it does not fall within the exceptions… don’t post!
  31. 31. Thank you…Questions? Lorraine M. FleckBarrister & Solicitor | Trade-mark Agent E-mail | Website | Blog | | @lorrainefleck | @HofferAdler
  32. 32. An Ounce of Prevention isWorth a Pound of Cure: KeyElements for Social Media Policies Lorraine M. Fleck lawTechcamp 2011 June 18, 2011 These slides do not constitute legal advice.