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©2012 R | McHale Law. All rights reserved. rmchale.com
Robert McHale, Esq.August 2012
Navigating Social Media Legal Risks:Safeguarding Your Business
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How Does Social Media Intersect with the Law?
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The Intersection of Law and Social Media Advertising and Marketing Online Defamation Human Resources, Recruiting, and Employee Rights Privacy and Data Security Intellectual Property
Copyright Trade Secrets Trademarks
Regulatory Compliance Litigation and E-discovery
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What Laws Govern Social Media?
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Social Media Laws and Regulations
The Federal Trade Commission (FTC) Act The Lanham Act Children’s Online Privacy Protection Act (COPPA) Digital Millennium Copyright Act (DMCA) Communications Decency Act (CDA) National Labor Relations Act (NLRA) CAN-SPAM Act FTC’s Guides Concerning the Use of Endorsements and
Testimonials in Advertising Intellectual Property
Copyrights Trademarks Trade Secrets
Anti-Discrimination Laws (state and federal) Fair Credit Reporting Act (FCRA) Health Insurance Portability and Accountability
ACT (HIPAA) Electronic Communications Privacy Act (ECPA) Stored Communications Act (SCA) Fair Credit Reporting Act (FCRA) Gramm-Leach-Bliley Act (GLB) Sarbanes-Oxley Act (SOX) USA Patriot Act Common Law
Defamation Invasion of Privacy/Publicity
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Common Risk Areas
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Risk Areas
1. Employee Monitoring, Screening and Discipline2. False Advertising3. Endorsements and Disclosures4. Social Media Contests and Sweepstakes5. Trademark Protections from Brandjacking and
Cybersquatting
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Employee Monitoring, Screening & Discipline
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Social Media in the Workplace
Social Media Background Checks (FCRA) Employee Discipline (NLRA) Employee Endorsements (FTC) Discrimination / Harassment Privacy
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The FCRA is Real. So is FTC Scrutiny.
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When the FTC Speaks, Spokeo Listens.
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Facebook Firings - What the NLRB Has to Say.Employees are prohibited from “[m]aking disparaging commentsabout the company through any media, including online blogs,
other electronic media or through the media.”
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Protected Grievance or Actionable Gripe?
Whether the social media post was submitted during working hours Whether comments relate to wages, benefits, performance, staffing
levels, or other terms and conditions of employment Whether the social media activity appears to initiate, induce, or
prepare for group action (versus mere griping) Whether the employee’s co-workers had access to the social media
postings Whether co-workers responded to or otherwise participated in the
social media postings
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False Advertising
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False Advertising: Business to Consumer
An advertisement is unfair/deceptive if: The representation is likely to mislead the consumer The consumer’s reaction to the representation is reasonable,
determined from the total impression the advertisement creates in the mind of the consumer
The representation is material – that is, it is “likely to affect the consumer’s conduct or decision with regard to a product or service”
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Busted for False Advertising
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False Advertising: Business to Business
To establish a claim of false/misleading advertising: The defendant made a false or misleading statement of fact about
its or plaintiff’s products or services The false or misleading statement actually deceived or tended to
deceive a substantial portion of the intended audience The statement is material in that it will likely influence the deceived
customer’s purchasing decision The defendant has been or is likely to be injured as a result of the
false statement
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Be Careful with User Generated Content
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“Scamberry?” Don’t Talk Smack!
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Where Are My Facebook Manners?
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Facebook Retraction
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The FTC Endorsement Guides & Dot Com Disclosures
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The FTC Endorsement Guides
Endorsements must be truthful and not misleading If the advertiser doesn’t have proof that the endorser’s experience
represents what consumers will achieve by using the product, the ad must clearly and conspicuously disclose the generally expected results in the depicted circumstances
All material connections must be clearly and conspicuously disclosed
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The FTC’s 2000 Dot Com Disclosures
Prominence Presentation Placement Proximity
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AnnTaylor’s Wrist Slapped
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Fake Reviews Cost Real Money
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Disclose! Disclose! Disclose!
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Social Media Contests and Sweepstakes
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Contests and Sweepstakes – Not Lotteries
Sweepstakes: prize giveaways where the winners are chosen predominately by chance.
Contests: promotions in which prizes are awarded primarily on the basis of skill or merit.
Lotteries: random drawings for prizes wherein participants have to pay to play. A lottery has three elements: prize, chance, and consideration. [ILLEGAL!]
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Sweepstakes Laws
Clear and conspicuous statements: “no purchase is necessary;” “a purchase will not improve one’s chances of winning;” and “void where prohibited”
The method of entry, including a consideration-free method of entry that has an equal chance with the purchase method of entry
Start / end dates Eligibility requirements Sponsor’s complete name and address Description and approximate retail value of each prize, and the odds of winning each
prize Manner of selection of winners and how/when winners will be notified Where and when a list of winners can be obtained
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Contests Laws
Name and business address of the sponsor of the contest The number of rounds or levels of the contest, the cost (if any) to enter each level, and
the maximum cost (if any) to enter all rounds Whether subsequent rounds will be more difficult to solve, and how to participate The identity or description of the judges and the method used in judging How and when winners will be determined The number of prizes, an accurate description of each prize, and the approximate retail
value of each prize The geographic area of the contest The start and end dates for entry Where and when a list of winners can be obtained
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Social Platform Rules Matter
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Facebook Page Suspended
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Enter by [not] “Liking”
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Trademark Protections from Brandjacking and Cybersquatting
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Lessons in Brandjacking #1
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Lessons in Brandjacking #2
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Lessons in Brandjacking #3
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Legal Guidelines for Social Media Policies
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Vital Corporate Social Media Policy Provisions Social Media Goals Permission and Parameters Monitoring Spokespersons Employee Participation Confidential/Proprietary Information Use Privacy Settings Nondisparagement and
Nondiscrimination Protected Activity Personal Versus Official Use
Register Social Media Accounts in Company’s Name
Ownership of Social Media Accounts
Disclosures/Disclaimers Endorsements Respect Copyrights and
Intellectual Property Rights of Others
Disciplinary Action Security Employee Training Acknowledgment/Signature
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Stay Connected
Robert McHale, Esq.Tel: (617) [email protected]@rmchalelaw
Legal Disclaimer: This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and any specific legal questions you may have.
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