Social Media: Marketing and the Legal Risks Training Session One: The Social Media Playbook Matthew Spanovich & Eric Wiechman December 2, 2011 Spanovich

Social Media: Marketing and the Legal RisksTraining Session One: The Social Media Playbook

Matthew Spanovich & Eric Wiechman

December 2, 2011

Spanovich & Wiechman Dec 2011


Schedule of Proceedings

• Eric Wiechman– What is Social Media?– State of the Social Media– Effective Social Media Marketing

• WOMM (Word of Mouth Marketing)• Marketing Conversation• The C’s• Benefits and Goals• Comparing forms of Advertising


Schedule of Proceedings, cont.

• Matthew Spanovich– The Legal Risks of Social Media

• Categorizing the Risk• Defamation• Privacy and Employment • Communication Decency Act• Developing a Social Media Policy


What is Social Media?

• Forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content

- Webster Dictionary



State of Social Media

• Facebook- 800 Million

• Youtube- 3 Billion

• Twitter-200 Million




Age Demographics of Social Media

• Millenials/Gen Y-ers

• Baby Boomers


MONOLOGUE

DIALOGUE


The C’s of Social Media

• Communicate

• Community

• Creative

• Competition

• Collaborate


Word of Mouth Marketing: WOMM

• Buzz Marketing

• Viral Marketing

• Influencer Marketing

• Evangelist Marketing

• Stealth Marketing


Benefits of Social Media

• Qualitative - Loyalty, Trust, Interaction, Brand Awareness

• Quantitative - Cost-Free


Goals of Social Media Marketing

• Enable, Inspire, Influence

• Love or Hate


Social Media vs. Other Forms

• “In many organizations, the corporate marketing function has lost budget, head count, influence, and confidence, resulting in strategic consequences that run deeper than many managers realize.”

Sloan Management Review


The Legal Risks of Social Media

• Categorize the Risk– First Party Liability: Personal Liability– Agency Superior Liability: Employees, agents, and

co-brands– Secondary Liability: Customers and Users– *International

(Davis Wright Tremaine LLP, 2011)


Action upon Categorization

• First Party: Immediately contact personal lawyer and, if applicable, inform employer

• Agency Superior: Notify superiors and HR• Secondary: HR and PR


First Party Liability

• Most common and most damaging to the individual

• Ex. Hospital employee in Dec 2009 resigned over tweet referring to care for Governor of Mississippi

• Sub-Categories: defamation, false advertising, invasion of privacy, and harassment

(Burke & Goldstein, 2010)


Defamation

• Four Elements of Defamation– 1) A False Statement– 2) Published to 3rd Party without privilege– 3) Fault amounting to at least negligence– 4) Causing special harm

• Court Rulings tend to be subjective

(Blaine T. Bettinger)


Examples of Defamation Cases

Horizon Realty also cited the following tweet from the same user:


Defamation Checklist

False Statement Published to 3rd Party Fault or negligence Special harm

The judge dismissed with prejudice, citing that the tweets were too vague

(Bettinger)


Privacy Laws

• Must consider all laws protecting individual privacy, including: health, financial, online, communication, education, and information privacy

• In court, public postings on public sites are not considered private– Exceptions: password protected site or if the

individual uses security settings to prevent viewing

Secured Communications Act (Saper)


Employment Laws

• Employer can monitor all work-issued equipment if it notifies employees beforehand

• If not, courts decipher when employee has a reasonable expectation for privacy

• Employers cannot hack into employee accounts to obtain password-protected materials under the Stored Communications Act

(Elefant, p. 17)


Employers’ Rights

• Can check social media to verify information provided by a job applicant

• Can view social media for postings of harassment between employees

• Controversy: Viewing social media to determine character of candidate

• 29 states have lifestyle statutes, including WI

(Saper) (Elefant, p. 15) (Burke & Roth, 2011)


Communications Decency Act

• Ruled unconstitutional in 1996 • Section 230

– No provider or user of a social media platform can be treated as the publisher of any info provided by another user or provider

• Section 230 does not protect against Federal criminal or intellectual property claims

(Bettinger) (Steinman & Hawkins, p. 8)


Social Media Policy

• Last line of defense• Explicitly state in handbook

– Employee activity vs. Private activity– Monitoring approach

• Four horsemen of social media– Breach of Confidentiality, Defamation, ‘False and

Misleading’, and Infringement• Oversight system

(Davis Wright Tremaine LLP, 2011)


Conclusions & Recommendations

• 4 recommendations– 1)Co’s should educate employees in the C’s and

train to engage in consumer-driven dialogue– 2)Co’s should provide training for employees in

social media law– 3)All co’s should immediately develop social media

policies– 4)US courts should find similar ground on rulings


Thank You

• Thank you for your time

• God’s blessings in your future careers

• Handout• Questions?

Documents

Social Media: Marketing and the Legal Risks Training Session One: The Social Media Playbook Matthew Spanovich & Eric Wiechman December 2, 2011 Spanovich