Social Media in AsiaPacSocial Media in AsiaPac

HANNA TORNEUS - SKADDEN, ARPS - HONG KONG MEREDITH WILLIAMS, BAKER DONELSON - U.S.

“I don’t need to know what my ‘friends’ had for breakfasthad for breakfast.”

“LinkedIn is a glorified Rolodex - I already have my I already have my contacts in Outlookcontacts in Outlook.”

“ is great for reconnecting with my college buddies and sharing pictures, but it

servesserves no business purposeno business purpose.”

Why Social Media? It is just a FAD.Why Social Media? It is just a FAD.

Why Social Media? It is just a FAD.Why Social Media? It is just a FAD.

“Movies are a fad. Audiences really want to see live actors on a stage.”

- Charlie Chaplin

http://www.allfacebook.com/2010/08/facebook-dominates-web/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+allfacebook+%28Facebook+Blog%29

What are the Social Media tools?What are the Social Media tools?

1. Social Networking – Facebook2. Business to Business (B2B) – LinkedIn, XING and Plaxo3. Blogging & Microblogging – Twitter and Wordpress4. Bookmarking – delicious and Digg5. Productivity Tools

– Controlling the Information Overflow – RSS readers and Instapaper– Geolocation – foursquare and Yelp

6. Sharing – YouTube, Flicker, Pinterest, and Instagram

Why are companies using Social Media?Why are companies using Social Media?

• Build brand

• Gain insight into customers and industry

• Promote services

• Increase traffic to Web site

• Bring in new business

Risks of Using and NOT UsingRisks of Using and NOT Using

• Labor and Employment – Hiring & Termination– Employee Monitoring– Wage & Hour– Non-Competes & Non-Solicitation– Harassment– Confidentiality & Privacy

• Commercial – Advertising/ Brand Management– Copyright & Trademark– Social Media Ownership

• Lawyer Specific – Misconduct (Obtaining

information fraudulently)– Confidentiality, Privacy &

Privileged Information– Duty of Candor & Expertise

Listings (Recommendations/ Online Credentials)

– E-Discovery– Competent Representation

Labor & EmploymentLabor & Employment

Hiring/ TerminationHiring/ Termination

• What are you missing if you do NOT use SM?– Employers benefit from the lawful use of information obtained from

SM. – Using SM can provide historical behavior.

• What are the concerns with using SM?– Information discovered while viewing personal social media sites

could be equated to questions asked in an interview.– Areas to watch include Race, Age, Religion, Marital Status, Sexual

Preference, Pregnancy Status or Disability. – Best practices:

• Screen applicants in a uniform manner. • Have a neutral party screen information.

Employee Website MonitoringEmployee Website Monitoring

• What are you missing if you do NOT use SM?– Employers should not forget their right or obligation to monitor and

direct employees with regard to internet use in the workplace. – Can deal with negativity or incorrect information head on and can

control when an employee may be erroneously acting as an agent.

• What are the concerns with using SM?– Employers must be aware of local country monitoring standards.– Hong Kong – Require a filing.– Italy – Can’t use for background checks.– Spain – Can monitor if warn.

Employee Website Monitoring (NLRB)Employee Website Monitoring (NLRB)

• NLRB. Does the employer break the law by terminating an employee for submitting posts about the workplace to a social media website? The short answer is Yes & No.

– The Hartford regional NLRB office issued a complaint in the case of American Medical Response of Connecticut Inc. and International Brotherhood of Teamsters, Local 443, NLRB Case No. 34-CA-12576 on October 27, 2010 to challenge the employer's restrictions using a law that governs labor practices.

– Karl Knauz Motors Inc. d/b/a Knauz BMW and Robert Becker, NLRB Case 13-CA-46452 on October 1, 2012. First Facebook firing upheld. The speech was not protected.

Wage & HourWage & Hour

• What are you missing if you do NOT use SM?– Social Media is a great form of advertising. Many companies hire a

person to use social media for the company.– This means – this person can be anywhere in the world and do this job

at any time of the day.

• What are the concerns with using SM?– Time spent promoting the employer’s product or service through

social media sites is most likely compensable “working time” under the FLSA and applicable state/local wage and hour laws.

– Incorporation of these mediums and practices into an employer’s overtime and time recording policies will help protect an employer from potential wage and hour issues.

Non-Competes & Non-SolicitationNon-Competes & Non-Solicitation

• What are you missing if you do NOT use SM?— Connections, connections, connections

• What are the concerns with using SM?— Non-Compete Agreements: If an employee leaves and starts friending

all your former customers on Facebook, linking with competitors and posting that you’re looking for work in the same field, then that employee will probably get a letter from the company lawyer asking for that to stop.

— Non-Solicitation Agreements: Some employers are demanding that former employees unlink and de-friend their LinkedIn, Facebook, and other social network contacts connected with the company. Many courts that won’t enforce non-competes will still enforce a non-solicitation provision (Amway Global v. Woodward ; TEK Systems, Inc. v. Hammernick )

HarassmentHarassment

• What are you missing if you do NOT use SM?— Employee team building— Engaging employees in the way they desire to be communicated

• What are the concerns with using SM?— Example #1: Beware of encouraging the use of social media. When

a supervisor wants to be a subordinate’s friend on a social networking site, it can create an awkward interaction between the supervisor and subordinate. If the subordinate accepts the invitation, the supervisor can see the subordinate’s other friends, photos, “wall” postings, social activities, etc. If the subordinate doesn’t accept the invitation, he or she may be concerned that his or her employment opportunities may suffer.

HarassmentHarassment

• What are the concerns with using SM?— Example #2: Be cautious of privacy. An employer was recently

found to have violated the Stored Communications Act (SCA), when managers accessed an employee’s MySpace page through a password obtained from the employee’s co-worker who testified that she felt she would have gotten into “trouble” unless she provided the password to the account when asked by her managers. Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009).

Confidentiality & PrivacyConfidentiality & Privacy

• What are you missing if you do NOT use SM?— Free advertising

• What are the concerns with using SM?— Employee Privacy. Employers must reduce employees’ expectations

of privacy in the workplace by clearly stating that employee use will be monitored. Courts have stated all social media is considered a public forum & therefore, no expectation of privacy.

Confidentiality & PrivacyConfidentiality & Privacy

• What are the concerns with using SM?– Company Privacy & Business Confidences. Regarding confidential and

trade secret information, the issue of disclosure, both intentional and accidental, is enhanced through social media sites. In the “twitter” world, where individuals feel compelled to describe every aspect of their day, the likelihood that they may, even unintentionally, leak confidential information about the company while describing their workday is of real concern. Employer’s confidentiality and trade secret policies need to recognize and incorporate this medium, and employees must be put on notice and trained that such information is not to be discussed or disclosed without authorization.

Confidentiality & Privacy (NLRB)Confidentiality & Privacy (NLRB)

• Restrictions on the distribution of "confidential" information. — Companies have the right to require employees to keep confidential a

good deal of information on business secrets, intellectual property, and other similar information.

— But "personnel" information that addresses wages, hours, or terms and conditions of employment cannot be kept secret as part of a general ban on the dissemination of "confidential information."

• Policy— Confidential information in corporate policies, especially social media

policies, should be expressly defined to exclude general information on wages, hours, and terms and conditions of employment.

— Policy must be narrowly tailored to the business needs, and can not sweep so broadly so as to interfere with employee rights under federal labor law.

Confidentiality & PrivacyConfidentiality & Privacy

• Example:— Two North Carolina Domino’s Pizza employees decided to video

themselves doing unsanitary and distasteful acts to the food they were preparing. The employees uploaded the video to YouTube, and soon the video had been viewed over one million times.

— Domino’s managed to get the video removed from YouTube, but considerable damage was already done. Domino’s launched a response to the video assuring consumers that the employees’ behavior was an isolated incident, that the employees had been terminated and that the store had been sanitized, but they could not erase consumers’ memories of that video. Despite having it removed from YouTube. The video is still available on other sites.

Password RequestingPassword Requesting

• Recent Developments– California, Massachusetts, Illinois and Maryland recently passed

legislation to prohibit employers from pressuring job applicants to provide their Facebook passwords.

– 2 state senators (Connecticut and NY) have asked the Department of Justice and the Equal Employment Opportunity Commission to investigate whether federal laws such as the Computer Fraud and Abuse Act and the Stored Communications Act are violated by the practice and say they are drafting legislation to make clear that the practice is illegal.

• Recommendation– Never force the access by requesting the username or password.– Never force the connection by requesting friending.

Commercial IssuesCommercial Issues

Advertising & Brand ManagementAdvertising & Brand Management

• What are you missing if you do NOT use SM?— Free advertising— Customer service— Connections with clients and potential clients

• What are the concerns with using SM?

— By identifying oneself as an employee, a social networker becomes a representative of that company. Therefore, everything posted has the potential to reflect on the company and its image.

— FTC Rules around Advertising - Require disclosure and truthfulness in social media outreach; Monitor the conversation and correct misstatements; Create social media policies and training programs.

Copyright and Trademark ConcernCopyright and Trademark Concern

• What are you missing if you do NOT use SM?— Brand Recognition

• What are the concerns with using SM?• Companies should monitor social media sites for infringement of a

company’s intellectual property. A failure to police and take action to prevent and stop such misuse can significantly diminish the value of the company’s intellectual property rights.

• NLRB has explained that regardless of intellectual property rights in company logos and trademarks, employees have the right to use company logos and trademarks in connection with discussions or protests over wages, hours, or terms and conditions of employment. Thus, social media restrictions on the use of company logos or trademarks should expressly indicate that the restriction does not apply to activities that could fall under section 7.

SM Content OwnershipSM Content Ownership

• What are you missing if you do NOT use SM?— Having an employee in a SM role can create a consistent online

message for the company.

• What are the concerns with using SM?

— Who owns the company account should be included within a social media policy and specifically stated in agreement with SM employee.

SM Content OwnershipSM Content Ownership

• What are the concerns with using SM?– Companies need to be careful that they don’t post or use anything

that they do not own. Posting content that belongs to another person is copyright infringement.– Facebook: You own the content you post, but we get a license to

use it.– Flickr: You own your photos.– Twitter : You own what you tweet. – Twitpic: You own it, but grant us the right to sell your pictures to

other websites and keep the profit.– LinkedIn: LinkedIn has a perpetual license to all email messages;

pictures; messages to and from Connections; recommendations and PowerPoints posted.

Lawyer Specific IssuesLawyer Specific Issues

Misconduct (To Friend or NOT to Misconduct (To Friend or NOT to Friend)Friend)

• Example – Ex Parte Communication – PA Attorney had a 3rd party “friend” opposing counsel witness to learn

more information. This was considered the same as interviewing the witness with no attorney present. Attorney reprimanded.

• Example - Facebook Poking– TN woman “poked” someone on Facebook. The court determined

this violated the court order in place. First of its kind.

• Regulations– Friending considered communication in the eyes of the court. Falls

under Communications Act of 2003. – Judges and Lawyers can not be “friends” online. (FL)

Confidential & Privileged Confidential & Privileged InformationInformation

• Lawyer. In April of 2006, a California Judge reprimanded a prosecutor for discussing a misdemeanor case he was handling on his Facebook blog. The judge called the prosecutor juvenile, obnoxious and unprofessional. Quoting sections of the blog where the prosecutor referred to his opposing counsel as “chicken” and other obscene comments. Attorney argued the site was private. The judge sent a written ruling to the State Bar. The blog was taken down the next day.

• Nurse. A nurse on her first day of work, began texting to her personal social media site about the days events. She described in detail patient injuries.

Duty of Candor & ExpertiseDuty of Candor & Expertise

• A lawyer shall NOT state or imply that a lawyer is an expert or a certified specialist unless the lawyer has been certified by an organization that is accredited by the ABA or the state bar.

• This affects online credentialing & recommendations.

– Board of Ethics require review and monitor all online credentials and recommendations carefully for compliance with rules of professional conduct. The expect edit or hide items that contain the verbiage “better”, “the best”, “expert”, “specialized” or “certified”.

– Never be false or misleading in your online credentials.

E-DiscoveryE-Discovery

• Any social media managed by the company (i.e. company owned blogs), must be backed up on a retention schedule to avoid spoliation claims.

• Any 3rd party social media site utilized must be captured. Most use 3rd party tools but some are now providing easy production (Twitter)

• Read all TOS and Privacy Policy for company used social media. Be aware of what is tracked and why information may be shared.– Logins– IP Addresses

Expectation of Privacy for DiscoveryExpectation of Privacy for Discovery

• Romano v. Steelcase Inc. Judge ordered delivery of “private postings”. No expectation of privacy. Everything is discoverable. Courts continue to find that when someone posts on Facebook, Twitter, or their equivalents, that individual gives up the expectation of privacy, even if the messages were private messages or restrictions were set on a profile page.

• Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012). Social media has been compared by a federal court to email. The judge in Robinson wrote: I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.

Competent RepresentationCompetent Representation

• As an attorney, if I don’t research the available information on social media sites, am I providing competent representation?

– Short answer - No

– As attorneys we can no longer ignore social media and consider it to be not relevant. However, we must be careful how locate and use the information.

Policy & EducationPolicy & Education

• What is the greatest risk?– AN UNTRAINED TEAM

• Policy Drafting– Keeping your audience in mind (140 characters)– No more than 1 page– Identify the consequences of not complying

• Education– Educate the purpose of Social Media– Discuss the benefit to the employee – This is protecting them as much

as the company.– MAKE IT MANDATORY

Questions?Questions?

Hanna R. TorneusRegional Technology Manager Asia

Skadden, Arps, Slate, Meagher & Flomhanna.torneus@skadden.com

Meredith L. Williams, Esq.Chief Knowledge Management Officer

mlwilliams@bakerdonelson.comTwitter: @mlwilliams77