Social Media Law: It is Real and, Yes, Really Can Impact Your Business (see link to full video of presentation below)

SOCIAL MEDIA LAW

Shawn E. Tuma@shawnetuma

[email protected]

Presented for

Social Media Breakfast - DallasAugust 30, 2012

It is Real and, Yes, Really Can Impact Your

Business

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#smbdallas

www.brittontuma.com #smbdallas

Priorities!

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I am a lawyer what I say today, the slide presentation,

and the video are for educational purposes only and not intended to be legal advice and should not be relied on as such

this does not create an attorney-client relationship

why am I really happy about being here and what am I really trying to do?

The Disclaimer

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1. Can I be sued for [x, y, or z]?

2. Is the risk of using social media worth it?


Yes!

Law + Social Media = Peaceful Coexistence

Two Most Common Questions

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Today I want to: help find an acceptable balance

educate you on risks of using social media, along with other digital business risks

show you some ways to help minimize those risks

Remember: social media is a tool – what you say and do is much like “real life”

Use common sense!

Of course use social media – but use it properly!


Goals for Today!

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WHAT IS SOCIAL MEDIA LAW?

#smbdallas

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Social Media Law: The law that applies to and governs the use of social media.

(was that all you really wanted to know?)


What is Social Media Law?

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Social Media Law: inherent risks

natural tension between promoters v. risk management in business

BUT!!!

I am “sold out” on social media and an avid user … and I don’t want to get sued either …



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2 General Types of Law

Codes: legislatures create specific laws to address specific problems

Common Law: judges look to general principles of law and, by using reason, apply those principles to resolve previously unforeseen problemswww.brittontuma.com #smbdallas


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Legislatures want to keep up impossible speed technology is evolving speed culture and business environment

changing legislature too slow

example: • last spring the big ruckus was

prospective employers asking for social media logins – the massive public outcry made it such that nobody in their right mind would do that now

• Aug 2012: Illinois became one of 2 states to enact a law to prohibit (eff. date: 1/1/13)



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It Is

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!

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Look to Common Law contract law

intellectual property law

torts – defamation

regulatory law

employment law

evidence law



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You can’t protect against what you don’t know, so let’s apply

this “law stuff” to the real world …



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Who uses social media for marketing?

do you want to give your marketing efforts to your competitor?

who really owns your account

followers / connections?

“an ounce of prevention is worth a pound of cure”: PhoneDog v. Kravitz

each service or site has a contract

contract lawwww.brittontuma.com #smbdallas

Real World Examples of Social Media Law

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Who has trade secrets, confidential and proprietary information?

do you want to tell your competitors?

customer / vendor lists who are you talking to or following?

secret business alliances, strategies, plans

business situational awareness

intellectual property lawwww.brittontuma.com #smbdallas


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Who wants to get sued? infringement of trademark right to publicity

name, voice, signature, photo, likeness (statutory after death)

common law while living if for value commercial v. educational or newsworthy audience picture v. company promo video

infringement of copyright attribution isn’t always enough DMCA Takedown Request Google now penalizes for too many

must have a license or use creative commons

intellectual property law



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Copyright Example

www.brittontuma.com

Attribution: prthugp @ http://www.officialpsds.com/prthugp-Profile9747.html

License: Creative Commons

Attribution 3.0

#smbdallas


http://www.officialpsds.com/prthugp-Profile9747.html

http://www.officialpsds.com/prthugp-Profile9747.html

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Who wants to get sued some more?

what you (and your employees) say can hurt you!

Bland v. Roberts – “Like” case tortious interference defamation (libel, slander, bus.

defamation) false advertising & false warranties fraud & negligent misrepresentation online impersonation harassment and cyber-bullying “puffery” of facts



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Who wants to get investigated by the Feds?

FTC – Investigated Hyundai for not disclosing incentives given to bloggers for endorsements.

Google this week. (Fed. Ct. in Oracle v. Google)

HHS & OCR – could have investigated hospital worker who posted patient “PHI” on Facebook (“Funny, but this patient came in to cure her VD and get birth control.”)

SEC – false statements in raising funds (SEC v. Imperia Invest. IBC) or insider information “Board meeting. Good numbers=Happy Board.” before official release

regulatory law



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What are some real trouble spots?

Employment issues – next section

Giveaways and contests can be trouble for many reasons – do not do them on social media without having it thoroughly vetted many sites’ TOS prohibit

jurisdiction gambling and contest rules

Have you read Facebook’s Page Terms? (https://www.facebook.com/24hfcastlehills/posts/403914059658181)



https://www.facebook.com/24hfcastlehills/posts/403914059658181

https://www.facebook.com/24hfcastlehills/posts/403914059658181

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What if someone is talking bad about your business on social media?

defamation rules apply online

but … be careful

the “Streisand Effect” Dallas law firm

anti-SLAPP (Strategic Lawsuits Against Public Participation)



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Guess what will be used against you? social media is evidence – very powerful

evidence!

electronically stored information (“ESI”) is becoming the most useful form of evidence in virtually every kind of lawsuit and investigation

we now have complete records of 2-way communication stream – like all calls recorded!

you don’t “own” your tweets! (“If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy.” State of N.Y. v. Harris)

4th Am. ≠ protect Facebook posts (U.S. v. Meregildon, Aug. 10, 2012)



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MINIMIZING THE RISKS OF SOCIAL

MEDIA IN BUSINESS

#smbdallas

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Monitor, Regulate & Archive SM Necessary if regulated industry

finance, insurance, energy & utilities, healthcare, government, legal

Wise for others

Products Barracuda Web Filter

DataSift

Actiance


Minimizing the Risks of Social Media in Business

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In general you want to recognize and appreciate potential

issues

decide how to handle those issues

educate your team on those issues

collaborate and train on how to comply with and resolve issues

create and outline procedures for using social media

monitor (to some degree) to ensure compliancewww.brittontuma.com #smbdallas

Social Media Policies

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Social media policies are a “must have”

ounce of prevention: less than 1 day of litigation

if have, must enforce trying to predict issues – but evolving – can’t

get all contractually resolve issues such as ownership

and authority great opportunity to set rules and document

expectations greater opportunity to explain and ensure

understanding of expectations put on notice of monitoring – and actually

monitor! should address employment issues



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Employment Issues using social media in hiring

best to have set criteria with neutral third party investigate for criteria

not use to discriminate e.g., snooping to find race, gender, age,

disability, pregnancy

e.g., search for candidates on Twitter where disproportionate number of people <40 yrs. on Twitter, may violate the Age Discrimination in Employment Act

requesting social media login informationwww.brittontuma.com #smbdallas


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Employment Issues using social media for the company

scope of work for duties and times

e.g., overtime for weekend “Facebooking”

personal or company owned accounts / followers

familiarity and compliance with site Agreement / TOS

what is authorized / prohibited

responsibility for statements / disclosures

monitored

saying “use good judgment” is not enough!www.brittontuma.com #smbdallas


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Employment Issues using personal social media during

work can be prohibited

may prohibit using or disclosing company IP for personal SM

may prohibit using company info for setting up personal SM accounts



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You need social media policies but the National Labor Relations Board is making it difficult

NLRB jurisdiction = impacts interstate commerce

National Labor Relations Act (NLRA) sec. 7 gives employees right to engage in “concerted activities for the purpose of … mutual aid and protection”

NLRB finds illegal any policy provision that (a) restricts or (b) an employee would reasonably construe to chill concerted activities

On 5/30/12 NLRB General Counsel issued its 3rd Report on Social Media Policies in 1 year period (8/11 & 1/12)


Will the NLRB Allow It?

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Can you guess who the NLRB is pulling for?

making it very difficult for businesses to protect themselves

social media policies must now be carefully tailored to address unique business and legal needs of

your business

be enforceable and lawful in a court of law

be legal in the eyes of the NLRB

Examples of provisions found illegal by NLRBwww.brittontuma.com


#smbdallas



#smbdallas



#smbdallas



#smbdallas

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What is the NLRB really looking for?

clarity and precision

examples of do’s and don’ts that give context and real-life meaning to the rules

www.brittontuma.com


#smbdallas

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Cyber Insurance If you are doing anything in cyberspace, you

need it. Period.

Most traditional insurance does not cover cyber-events, even if you think it does (really!)

Cyber-Insurance is relatively inexpensive

Most policies come include a cyber-risk audit before the policies are underwritten

Policies can cover social media risk, computer fraud risk, and data breach / hacking risk


Cyber Insurance forDigital Business Risks


social media is wonderful!

must find proper balance

need a social media policy address unique business and legal needs of

your business

be enforceable and lawful in a court of law

be legal in the eyes of the NLRB

need to enforce social media policy

need to spend time with employees to help them understand and possibly collaborate on the rules

need to look at cyber-insurance!#smbdallas

Closing Summary


www.brittontuma.com

www.shawnetuma.com

Shawn E. Tumad. 469.635.1335m. 214.726.2808

e. [email protected]@shawnetuma

Copyright © 2012#smbdallas

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Social Media Law: It is Real and, Yes, Really Can Impact Your Business (see link to full video of presentation below)