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This presentation was made to Marketing Executives Networking Group (MENG) - Dallas on November 9, 2012. The presentation provides an overview of social media law, that is, the legal issues involved in using social media. The presentation provides practical examples of how those issues come about in the business world and provides ways to minimize the risks associated with those issues, including the use of social media policies.
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SOCIAL MEDIA LAW
Shawn E. Tuma@shawnetuma
Presented for
MENGMarketing Executives Networking Group - Dallas
November 9, 2012
It is Real and, Yes, Really Can Impact Your
Business
2www.brittontuma.com
I am a lawyer what I say today as well as the slide
presentation 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?
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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!
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Goals for Today!
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WHAT IS SOCIAL MEDIA LAW?
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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?)
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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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What is Social Media Law?
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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
What is Social Media Law?
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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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What is Social Media Law?
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It Is
Evo
lvin
g
Ever
yday
!
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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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What is Social Media 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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What is Social Media Law?
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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
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
Real World Examples of Social Media Law
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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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Real World Examples of Social Media Law
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Copyright Example
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Attribution: prthugp @ http://www.officialpsds.com/prthugp-Profile9747.html
License: Creative Commons
Attribution 3.0
Real World Examples of Social Media Law
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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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Real World Examples of Social Media Law
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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 recently. (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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Real World Examples of Social Media 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)
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Real World Examples of Social Media Law
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Real World Examples of Social Media Law
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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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Real World Examples of Social Media Law
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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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Real World Examples of Social Media Law
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MINIMIZING THE RISKS OF SOCIAL
MEDIA IN BUSINESS
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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
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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
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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Social Media Policies
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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
Social Media Policies
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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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Social Media Policies
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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)
9/7/12 First NLRB Ruling; 9/20/12 first NLRB Admin.L.J.
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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
Will the NLRB Allow It?
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Will the NLRB Allow It?
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Will the NLRB Allow It?
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Will the NLRB Allow It?
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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
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Will the NLRB Allow It?
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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
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Cyber Insurance forDigital Business Risks
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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!
Closing Summary
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www.brittontuma.com
www.shawnetuma.com
Shawn E. Tumad. 469.635.1335m. 214.726.2808
e. [email protected]@shawnetuma
Copyright © 2012
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