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Web 2.0: Legal Issues of Social Networking and Media Platforms

Jeffrey S. Tenenbaum, Esq.Venable LLP

Colorado Springs, COMarch 8, 2010

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Brief Summary of How Organizations Are Leveraging

On-line Social Media

- What is on-line social media?

- Current trends in use of social media

Legal Issues – “Similar Issues, New Platforms”(1) Entity use of on-line social media platforms

- Defamation, IP, Privacy, Advertising, Antitrust, Tax

(2) Employee use of on-line social media platforms- Workplace Environment, Recruiting/Hiring, Privacy,

Developing Policy

(3) Third-party use of on-line social media platforms

Agenda for Today

*Certain images used in PowerPoint are for research purposes only.

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What Is On-line Social Media?

(1) social networks – facebook, myspace,

(2) media repositories – youtube,

(3) blogs and microblogs – twitter

(4) wikis – wikipedia, medpedia, sidewiki

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Current Trends and Potential Benefits of On-line Social Media

(1) On-line Member Networks

(2) Real-time Customer Service

(3) Interactive Contests or Promotions

(4) Collaborative Educational Opportunities

(5) Virtual Campaigns

(CDC campaign badge)

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Entity Use of Social Media PlatformsDefamation

Act of harming reputation of another through false

statements to a third party

Comments made by others can be attributed to the

organization• example, Cisco Systems suit

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Entity Use of Social Media PlatformsDefamation

How to Avoid– Federal Communications Decency Act - § 230– Utilize disclaimers and terms of use– Enforce a take-down policy– Refrain from commenting on third-party posts– Consider available screening capabilities for third-

party hosts

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Avoid Trademark Misuse– Seek permission – Be especially careful in commercial context– Avoid using other’s trademarks in search terms,

domain names, or user names

Entity Use of Social Media PlatformsIP Issues

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Entity Use of Social Media PlatformsIP Issues

Be Mindful of Copyright Ownership– Who owns work on social media?– Work-made-for-hire doctrine, written

assignments of rights– Licenses: written licenses, click-wrap licenses,

implied licenses

Protecting Own Intellectual Property Rights– Monitor for misuse– Use clear placement of appropriate symbols - ©,

®, ™

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Entity Use of Social Media PlatformsMisleading Advertising

FTC Guidelines – Testimonials in New Media

– Applies when (1) “endorsement” and (2) “connection”

– Blogger and entity liability

– Entity doesn’t have to request endorsement

– Includes social media and network marketing

Cross-over to FDA Regulation

– Unsubstantiated representations

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Entity Use of Social Media PlatformsAntitrust

Communications prohibited under the antitrust

laws are similarly prohibited on social media

platforms

In addition, assume anything written will be read

in the worst possible light by antitrust enforcers

– for example, Whole Foods CEO Mackey’s

message board posts

Penalties for (1) corporation, (2) individual, and

(3) association

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Entity Use of Social Media PlatformsAntitrust

How to Avoid– Implement a written antitrust statement or policy

that is easily visible to users– The statement should prohibit discussions of:

• prices or pricing systems,• market allocation, • margins, • inventory levels, • reduction of output, or• statements that could be seen as encouraging

boycott of vendor, supplier, or competitor– Monitoring and Enforcement

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Entity Use of Social Media PlatformsPrivacy

Remain aware of the collection and use of

personally identifiable information– Available notions (or rights) of privacy still

recognized across on-line social media– Consider use of privacy notices describing

data collection and use – Remember to obtain or seek consent when

necessary– Be mindful of privacy policies and practices of

third-party platforms for / operators of social media networks

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Employee Use of Social Media PlatformsWorkplace Environment Issues

Use is likely inevitable.

So, avoid “head in sand” approach

Develop social media policy that addresses

permissible use while guarding against legal risk

Risks:

– Attribution to Entity

– Release of Confidential Information

– Harassment

– Loss of or Damage to Proprietary Rights

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Employee Use of Social Media PlatformsWorkplace Environment Issues

"the fact that the electronic bulletin board

may be located outside of the workplace… does not mean that an

employer may have no duty to correct offsite harassment by co-employees.

Conduct that takes place outside of the workplace has a tendency to permeate

the workplace." Blakey v. Continental Airlines, 751 A.2d 538, 549 (NJ 2000)

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Employee Use of Social Media PlatformsRecruiting/ Hiring

Can you investigate potential employees using

social media?

– YES, but…

(1) make sure employees cannot claim employment discrimination on prohibited factor

(2) review social networking sites in a systematic manner

(3) remain aware of privacy rights

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Employee Use of Social Media PlatformsLimitations

Limits on investigative powers of employers

– Certain jurisdictions prohibit adverse employer action for off-duty activities

– Fair Credit Reporting Act

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Employee Use of Social Media PlatformsDeveloping Policy

Consider Rules for Collaboration Involving

Interactive Forums

Outline Best Practices for Publishing Material on

Social Media

Prohibit Use of Inappropriate On-line

Names/Identifiers

Identify Limits on Acceptable Use of Company

Resources

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Questions?

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contact information

Jeff Tenenbaum, partnerjstenenbaum@venable.comt 202.344.8138f 202.344.8300

www.venable.com/associationswww.venable.com/associations/publications

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the road ahead for ABC CORPORATION