A Common Sense Approach to Crafting a Social Media Policy

February 12, 2010

Social Media Breakfast Maine

Brad Lawwill

General Counsel

PIERCE

One Monument Square, 4th Floor

Portland, Maine 04101

First, A Word From Our Disclaimer:

This presentation, including any related discussion and Q&A, offers general information on creating social media policies and is not intended to be, nor should it be construed as, legal advice.

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Let’s Define Our Terms

• Social Media: The use of web-based technologies to facilitate the sharing of information in a social setting.

• Blogs and Microblogs (e.g. Twitter)• Social Networking (e.g. Facebook)• Photos and Video Sharing (e.g. YouTube)

• Policy: A set of general standards and principles intended to guide an organization and its employees in the pursuit of the organization’s business objectives.

• Policy informs strategy and process

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The Approach

• Demystify• “Old wine in a new bottle”• Don’t make it bigger than it is

• Identify Potential Risks

• Establish Reasonable Guidelines to Mitigate Those Risks

• Address Administrative Requirements

• Include Reasonable Standards for Personal Use

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Things to Avoid

• Inconsistency and Overkill• Be mindful of other corporate policies, such as business conduct,

harassment or systems access policies• Make sure your social media policy ties with those policies• Don’t be afraid to reevaluate and update other policies

• Unnecessary Interference • Be respectful of your employees’ rights• Don’t mandate or prohibit personal social media use• Don’t tell them that they can’t talk about their jobs

• Fixodent and Forget It• Keep the policy fresh• Train, train, train

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Potential Risks

• Legal issues• Contract compliance• Confidentiality and trade secret protection• Defamation, trade libel and other tasty torts • Unfair competition• Intellectual property infringement• Securities and Exchange Commission rules

• That’s Just the Legal Stuff• Public relations risks• Remember Sarah’s Monroeville, Alabama example

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Contract Compliance

• Publicity• VENDOR agrees to submit to CLIENT for advance written approval, all

advertising, sales promotion, press releases and other publicity matters relating to the product furnished and/or the service performed pursuant to this Agreement, when CLIENT’S name or mark or the name or mark of any of its partners or affiliates is mentioned or language from which the connection of said name or mark may be inferred or implied.

• Non-Disparagement• VENDOR shall not act, directly or indirectly, in a manner that may damage or

disparage the goodwill or reputation of CLIENT or its products or services.

• Confidentiality• VENDOR agrees to hold all of CLIENT’S confidential information in confidence

and shall not publish, disseminate, use, or disclose to any third party the confidential information without prior written permission of the CLIENT.

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Contract Compliance

• Hypothetical Examples• “Up late working on big project for CLIENT!” • “Up late working on big project for CLIENT. Drinking their energy drink

to stay awake! Not sleepy, but growing fur on tongue.”• “Up late working on big project for CLIENT. Drinking their energy drink

to stay awake! Not sleepy, but growing fur on my tongue. Unveiling diet version in two weeks.”

• Policy Language• “Do not reveal COMPANY’S or its CLIENT’S confidential information.”• “Seek permission before using any CLIENT name or mark.”

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Defamation and Trade Libel

• Defamation• A defamatory statement (i.e. harmful to one’s reputation)• Published to someone other than the defamed• False • If related to a public figure, actual malice

• Trade Libel• Publication• With malice• Of false allegations concerning another’s products, property or

business• Financial damages

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Defamation and Trade Libel

• Horizon Realty v. Amanda Bonnen (case dismissed on 1/21/10)• “You should just come anyway. Who said sleeping in a moldy

apartment was bad for you? Horizon realty thinks it’s okay.”

• Policy Language• “Be professional, respectful and use good judgment.”• “You are responsible (and may be held liable) for your content.”• “All statements must be true and not misleading.”

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Unfair Competition

• Section 5 of the FTC Act prohibits unfair competition and deceptive advertising.

• Effective December 1, 2009, the FTC adopted revised Guides Concerning the Use of Endorsement and Testimonials in Advertising

• Both advertisers and endorsers can be held responsible for false or unsubstantiated claims or for failing to disclose a material connection between the endorser and advertiser.

• Policy Language• “Be transparent. Make sure the connection between COMPANY and

its CLIENT is made clear to the consumer.”• “Any product claims made through social media must be properly

substantiated.”

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Administrative Requirements

• Content Review

• Voice and consistency

• Compliance

• Information Technology Clearance

• Tracking and Monitoring

• Contract Documentation

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Personal Use

• Use Should Not Interfere With Job

• Use Should Not Violate Company Policies or Agreements

• Encourage Personal Opinion Disclaimers:• “The opinions expressed on this site are my own and do not

necessarily represent those of my employer.”

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