Social Media Legal, Regulatory & Compliance: Risks & Issues

Social Media Marketing: Legal & Regulatory Compliance

Presentation to MediaBistro’s Socialize 2011April 1, 2011

Understating legal and regulatory risks to businesses using social media

Using and maintaining proper policies and procedures to reduce risk

David M. Adler, Esq. Safeguarding Ideas, Relationships & Talent®

Speaker BioDavid M. Adler, Esq. is an attorney, author, educator, entrepreneur and founder of a boutique intellectual

property law firm based in Chicago, Illinois. With over fourteen years of legal experience, Mr. Adler created the firm with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.

Mr. Adler has an extensive private-practice and in-house background counseling and international cadre of clients on corporate and intellectual property law, including corporation, LLC and Limited Partnership creation and finance, contract interpretation, drafting, negotiation and enforcement as well as copyright and trademark registration and enforcement. Mr. Adler also specializes in advising artistic talent and creative professionals in the arts, entertainment, media and sports industries.

He received his law degree from the DePaul University College of Law in 1997 where he wrote for the DePaul Arts & Entertainment Law Journal. He received a Bachelor of the Arts in English and a Bachelor of the Arts in History from Indiana University in Bloomington, Indiana.

Outside the practice of law, Mr. Adler created and taught an undergraduate course on E-Business in the Arts, Entertainment & Media Management Department of Columbia College Chicago. He also chaired the Chicago Bar Association's Start-up and Entrepreneurial Ventures Subcommittee, frequently contributes as a “guest expert” columnist for numerous online publications in the areas of ecommerce, intellectual property and small business and periodically speak to industry and trade groups and associations on these topics.

David M. Adler, Esq. & Assoc.: Safeguarding Ideas, Relationships & Talent®

Background

• Social media sites like Facebook, Twitter, YouTube and LinkedIn provide the opportunity for authentic interaction and engagement with customers.

• Companies are now learning how to use these services as strategic marketing tools.

• New technological developments often create new legal and business risks.

• You will learn:1. How to identify the legal issues

2. How to develop policies and procedures to avoid legal risks

3. How to maintain regulatory compliance.

David M. Adler, Esq. & Assoc: Safeguarding Ideas, Relationships & Talent®

Background

• Social media sites like Facebook, Twitter, YouTube and LinkedIn provide the opportunity for authentic interaction and engagement with customers.

• Companies are now learning how to use these services as strategic marketing tools.

• New technological developments often create new legal and business risks.

• You will learn:1. How to identify the legal issues

2. How to develop policies and procedures to avoid legal risks

3. How to maintain regulatory compliance.

• DISCLAIMER: I Am Not Your Lawyer. This is NOT Legal Advice


Overview of Legal Risks

• Copyright Infringement

• Trademark Infringement

• Right of Publicity– Social Media Handles

• User-Generated Content

• HR/Employer/Employee Relations

• Fraud– Endorsement & Testimonials

• Emerging Areas– Privacy

• Regulations– CAN SPAM

– FTC “Dot Com” disclosures

– COPPA

– FTC Privacy Report


Legal Risks: Copyright

• Copyright protects “original works of creative authorship fixed in a tangible medium of expression




• What this means: – any content whether (a) created by you, (b) by some one else at your request, or (c) by an

independent third party IS PROTECTED BY COPYRIGHT1






– GET PERMISSON FIRST if the content is not created by you or under a written work-for-hire agreement







• Practical Applications







• Practical Applications– Can placing a hyperlink to a photo on a publicly-accessible Web constitute

misappropriation of the photo?2







• Practical Applications– Can placing a hyperlink to a photo on a publicly- accessible Web constitute


– Can an advertiser’s use of photo from photo-sharing web site constitute misappropriation?3










– Are “Tweets” protected by Copyright?4











– Is Tweeting a Conference Lecture a Copyright violation?











– Is Tweeting a Conference Lecture a Copyright violation?– Is Tweeting a Major League Sports event a Copyright violation?5


Legal Risks: Trademarks

• What is a Trademark/Servicemark?



• What is a Trademark/Servicemark?– Any word, name, symbol or device that signifies the source of goods or services




• How Are Trademarks Used in Social Media?




• How Are Trademarks Used in Social Media?– Brand Names





– Social Media Handles “@MediaBistro”






– Facebook Groups/Pages







– Comparative Advertising








• How Are Trademark Rights Acquired?








• How Are Trademark Rights Acquired?– Use





– Social Media Handles “@MediaBistro




– Registration









– Registration

• State & Federal









– Registration

• State & Federal










– Registration

• State & Federal

• Practical Applications– Is Creating a Facebook Page about your favorite brand infringement?









– Registration

• State & Federal

• Practical Applications– Is Creating a Facebook Page about your favorite brand infringement?

– Is Tweeting about a brand infringement?









– Registration

• State & Federal

• Practical Applications– Is Creating a Facebook Page about your favorite brand infringement?1

– Is Tweeting about a brand infringement?

– Is using a trademark as a social media handle infringement?


Legal Risks: Publicity Rights

• What is the Right of Publicity?



• What is the Right of Publicity?– Prevents unauthorized commercial use of an individual's name, likeness, or other

recognizable aspects of one's persona.





– Largely protected by state law; Only about half of the states recognize and protect it as part of the Right of Privacy.






– The Restatement Second of Torts recognizes 4 types of invasions of privacy: intrusion, appropriation of name or likeness, unreasonable publicity, and false light.







• Practical Applications– Unauthorized Use of One’s Name & Likeness








• Ton LaRusa, manager of the St. Louis Cardinals baseball team sued Twitter, claiming that unauthorized page using his name damaged his reputation and caused emotional distress.









• Keith Olberman, CNN recently acquired the rights to CNNbrk (CNN Breaking News), the largest Twitter account on record with 959,011 followers, 'owned' by James Cox, who doesn't even work for CNN.









• Keith Olberman, CNN recently acquired the rights to CNNbrk (CNN Breaking News), the largest Twitter account on record with 959,011 followers, 'owned' by James Cox, who doesn't even work for CNN.

• The Philadelphia Daily News published comments from Philadelphia Eagles cornerback Asante Samuel's Twitter feed, only to find that his words were being 'tweeted' by an imposter.1


Legal Risks: UGC

• What is User Generated Content (“UGC”)?


Legal Risks: UGC

• What is User Generated Content (“UGC”)?– Simply put, anything that is uploaded/posted by a “user”


Legal Risks: UGC

• What is User Generated Content (“UGC”)?– Simply put, anything that is uploaded/posted by a “user”– Used in a wide range of applications, including problem processing, news, gossip

and research


Legal Risks: UGC


and research– question-answer databases (LinkedIn Answers), digital video (YouTube),

blogging (Wordpress), podcasting, forums, review-sites, social networking, mobile phone photography and wikis.


Legal Risks: UGC




• What Are The Risks?


Legal Risks: UGC




• What Are The Risks?– Social Media is a Conversation. You cannot control what someone else is going to say about

you, your company, your product/service/brand.


Legal Risks: UGC








Legal Risks: UGC






• Practical Applications– Unauthorized “fan” page1


Legal Risks: UGC







– False/Deceptive/Misleading statements


Legal Risks: UGC








– Misappropriated content: Photos, Videos, Text


Legal Risks: UGC








– Misappropriated content: Photos, Videos, Text

– Defamatory/Objectionable language


Legal Risks: HR

• As social media interaction proliferates, companies are seeking ways to control how the sites are used to communicate with potential clients and colleagues.


Legal Risks: HR


• Control is far more complex because communications occurring on Web sites that are outside their IT systems and continuously in flux.


Legal Risks: HR



• Greater risks to regulated industries like Financial services industry because of compliance worries.


Legal Risks: HR






Legal Risks: HR




• Practical Applications– Litigation: “Facebooking the Jury”1


Legal Risks: HR





– Prospective Employees: Is it OK to use social media profiles in the hiring process?2


Legal Risks: HR






– Disclosure of Private Information3


Legal Risks: HR







– Can an employee criticize a supervisor when posting on a social media platform?4


Legal Risks: HR







– Can an employee criticize a supervisor when posting on a social media platform?

– What is protected and unprotected on social media, and do the same rules that apply to verbal communications in the workplace apply to social media?


Legal Risks: HR







– Can an employee criticize a supervisor when posting on a social media platform?

– What is protected and unprotected on social media, and do the same rules that apply to verbal communications in the workplace apply to social media?

– Does it make a difference if the post is done during non-work time?


Legal Risks: Emerging Areas

• Privacy



• Privacy– Individuals now spend more time interacting through social networking sites than they do

through traditional email.





– Facebook alone now boasts more than 500 million active members larger than the entire population of the United States.






• Mountains of personal information that was previously regarded as private and difficult to obtain

– A "profile page" may include information about the individual's location and background, videos, and photographs posted by the user and his or her friends, real-time updates tracing the user's every move and mood, groups that reflect the user's interests and views and up-to-the-minute information on a user's musings and thoughts on any number of issues.








– This information is freely available to "friends" or may be broadcast even more widely.









– The potential usefulness of that data is obvious. With just a few mouse clicks, one can investigate one’s background and views.









– The potential usefulness of that data is obvious. With just a few mouse clicks, one can investigate one’s background views.

– The prevalence of social networking data raises novel issues with respect to the use of this information in litigation.






• Practical Applications– The retrieval and use of information on social networking sites poses Fourth Amendment

and privacy concerns





– The Stored Communications Act, 18 U.S.C. §2702, presents a threshold challenge to litigants seeking to obtain an individual's social networking data directly from a third party social networking website.


http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_121.html





– Crispin vs. Christian Audigier Inc. involved misuse and non-consensual use of artwork.








– CA Central District Court held that the SCA prevents providers of communication services from divulging private messages on social networking sites since they "are not readily accessible to the general public, but implied that “wall postings” and comments are not protected where they are readily available to a wider audience.









– BUT SEE: Sony Computer Entertainment America LLC vs. Hotz et al. which involves allegation that defendant provided a “jailbreak” solution for Sony’s PS3.









– BUT SEE: Sony Computer Entertainment America LLC vs. Hotz et al. which involves allegation that defendant provided a “jailbreak” solution for Sony’s PS3.

– CA Northern District Court granted Sony access to personally identifiable information of individuals who visited defendant's website, Twitter account, YouTube video and blog.



Legal Risks: Regulations

• Axiomatic that advances in technology proceed faster than the law.




• In addition to various federal statutes, Federal Trade Commission has implemented a number of initiatives to “protect consumers.”





• Important Statues





• Important Statues– Federal CAN SPAM Act





• Important Statues– Federal CAN SPAM Act: sets the rules for commercial email (not just SPAM), establishes

requirements for messages, gives recipients the right to have you stop emailing them







– FTC “Dot Com” Disclosures







– FTC “Dot Com” Disclosures







– FTC “Dot Com” Disclosures: Guidelines involve disclosing information about relationships with advertisers or endorsers that would have a material impact about how a prospective consumer would view the message.








– COPPA








– COPPA: governs collection of personally identifying information of children aged 13 years or younger; requires parental consent.1









– FTC Privacy Report









– FTC Privacy Report: December 1, 2010 FTC proposed a new framework for protecting consumer privacy, along with more specific and aggressive guidelines for those in the business of sharing consumer information with third parties.


Summary

• Due Diligence


Summary

• Due Diligence– Is your firm aware of the legal and regulatory issues that impact

social media?


Summary


social media?– Does your firm take a “best practices” approach to engaging

customers, employees and business partners?


Summary



customers, employees and business partners?– Does your firm have a Social Media Policy that address the

firm’s philosophy and Behavioral, Channel, Contextual and Content Expectations?


Summary





– Does your firm monitor social media channels for negative messaging or IP rights violations?


Summary





– Does your firm monitor social media channels for negative messaging or IP rights violations?

– Does your firm have an action plan for addressing these risks?


Summary

• Action Items


Summary

• Action Items– Proper Contractual Provisions


Summary

• Action Items– Proper Contractual Provisions– Code of Ethics/Code of Conduct


Summary

• Action Items– Proper Contractual Provisions– Code of Ethics/Code of Conduct– Social Media Policy


Summary

• Action Items– Proper Contractual Provisions– Code of Ethics/Code of Conduct– Social Media Policy– Monitoring


Summary


• Google Alerts


Summary


• Google Alerts– Brand names/Trademarks


Summary


• Google Alerts– Brand names/Trademarks– Social Media Handles


Summary


• Google Alerts– Brand names/Trademarks– Social Media Handles– Executives Names


Summary



• Facebook/Myspace/LinkedIn Pages


Summary



• Facebook/Myspace/LinkedIn Pages

– Updated Privacy Policy


Summary

• Thank You!!!!
