Produced by Holland and Knight, this presentation covers social media legal liabilities.
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1. Social Media: Legal Liabilities, Loopholes and Lessons
LearnedAugust 10, 2011 Jennifer Mansfield Lindsay Dennis Swiger
Copyright 2011 Holland & Knight LLP All Rights Reserved
2. Important notice:Information contained in this PowerPoint is
forthe presenters use in an August 2011 program.It is being used
for informational purposes onlyand is not legal advice. Specific
facts require theapplication of specific laws. Federal and
statelaws change frequently. Thus, consult yourattorney with
particular legal questions. 2
3. Todays Topics Legal concerns: Who has liability for social
media content? Regulatory, privacy and other legal considerations
for marketing through social media Employment issues Crafting state
of the art policies Employee Policies Privacy Policies Terms of use
for your website 3
4. Social Media 4
5. Social Media Potential PR Nightmare Dominos: bad publicity
suffered by Dominos from the infamous YouTube prank video posted by
two of its employees: http://www.youtube.com/w atch?v=OhBmWxQpedI
Also: Nurses in Wisconsin terminated for posting patient Xrays on
Facebook Univ of New Mexico Hospital works terminated for taking
pictures of patient injuries with cellphone cameras and posting
them on MySpace 5
6. LEGALCONCERNS 6
7. Release of Sensitive/Protected Information Data security: An
employee could unwittingly click on links to spam and phishing
schemes or download malicious code onto the company network.
Re-Posting of material: E-mail messages, firm-wide memos, or
employee rants may end up before a wider audience, with little
recourse from the original author. Twitter tweets, even if original
followers are restricted can be retweeted See e.g., Moreno v.
Hanford Sentinel, Inc., 172 Cal.App.4th 1125 (2009) (author who
posted an article on social network site cannot state a cause of
action for invasion of privacy against the person who submitted
that article to a newspaper for republication) Hackers: Need to
maintain security to protect information of your customers/clients.
7
8. Internet Security You neverwant to have to send one ofthese
emails to your customers. . . 8
9. Defamation A false statement that tends to hold a person up
to hatred, contempt, or ridicule or causes him to be shunned or
avoided by others. Re-publisher just as liable as the original
speaker Section 230 of the Communications Decency Act; Craigslist
was absolved of liability for assault with a handgun sold on its
site MySpace was immune from liability for sexual predators
communicating with minors on its site Union immune from defamatory
postings by members on its site 9
10. Invasion of PrivacyFour types of invasion ofprivacy
claims:(1) intrusion upon seclusion,(2) appropriation of name or
likeness of another,(3) publication of private facts;(4) False
light (not in Florida)Yath v. Fairview Clinics, N.P., 767
http://www.youtube.com/wN.W. 2d 34 (Minn. App. 2009)
atch?feature=player_embe dded&v=mg11glsBW4Y 10
11. Intellectual Property Harm to Reputation: A company could
suffer a harm to its reputation from the creation of false
profiles. Name squatting and brandjacking when a third- party uses
a company name in social media without authorization. Copyright:
Get a license: Copyright in original UGC belongs to the user,
unless agreed otherwise. If you re-post, make sure what youre
reposting does not contain copyright violations. Fair use is an
affirmative defense, but can be very tricky 11
12. Digital Millennium Copyright Act (DMCA) 17 USC 512 Protects
Intellectual Property(sword): Notice and Takedown procedures
without litigation. Protection From Users Infringing Acts (shield):
"Safe Harbor" protects service providers until noticeLenz v.
Universal, 572 F.Supp.2d 1150 (N.D. Cal. 2008) of a violation is
properly given. http://www.youtube.c om/watch?v=N1KfJH FWlhQ
12
13. Social Media Litigation Concerns Discovery, preservation
issues: Ensure that data can be preserved, retrieved and produced
if required. Adopt/implement written computer maintenance schedule.
Include procedures for preserving electronic records in case of
subpoena or threatened litigation; and Consult legal counsel and IT
early to identify computers/other devices of employer, employees
and third parties that may have relevant information. Just because
an attorney is ccd, doesnt make it privileged. If a privilege
exists, it can be lost: Once communications are shared with others,
any privilege of confidentiality will be lost. 13
14. Federal Regulations HIPAA : Healthcare Insurance
Portability and Accountability Act of 1996. Nurses in Wisconsin
terminated for posting patient Xrays on Facebook Univ of Mexico
Hospital workers terminated for taking pictures of patient injuries
with cellphone cameras and posting them on MySpace HITECH Act
requires businesses or third parties who receive HIPAA information
to maintain confidentiality and must notify people if their
confidential information is released. 14
15. Federal Regulations Food, Drug, and Cosmetics Act (FDCA)
regulation of labeling and advertising for drugs and devices.
Labeling brochures, detailing pieces, letters, prices lists, etc.
Advertising journals, magazines, broadcast media, telephone, etc.
FDA says all manufacturers are in control of their websites and
thus all FDCA requirements apply. Testimonials especially for an
off-label use can create a problem for the company 15
16. Federal Regulations FTC Regulations
Testimonials/Endorsements regulation implemented in 2009. Must
disclose connections between advertisers and their endorsers that
might materially affect the weight or credibility of the
endorsement Free Product is considered compensation Childrens
Online Privacy Protection Act (COPPA); 15 U.S.C. 6501-6506; 16 CFR
Part 312. Applies to websites that target children under 13 or
know, or should know, that a visitor is under age 13 16
17. Social Media User Privacy ConcernsFTC Staff Report:
Self-Regulatory Principles For Online Behavioral Advertising (Feb.
2009) Transparency: The Report calls for companies to obtain
affirmative express consent from consumers for material changes in
use of PII Consumer Control: clear statement that (1) data about
consumers activities online is being collected for behavioral
advertising and (2) consumers can choose whether or not to have
their information collected for such purpose. 17
18. Social Networks SEC regulation Violation of securities
laws: Loose communication about public companies might violate
securities laws that regulate material misstatements, public
disclosures, and solicitations made by or on behalf of the company.
Example, in 2007, the SEC opened an informal inquiry into Whole
Foods CEO John Mackeys sock puppet activities, that is, his
anonymous posts and commentary to online financial message boards
praising Whole Foods and offering other opinions about its
competitors. Mackey was eventually cleared, but not before he and
the company were dragged through a media gauntlet. 18
19. Yikes!What can I do about all of this? 19
20. WebsitePrivacy Policies and Terms of Use 20
21. Website Privacy Policies and Terms of Use Two perspectives:
Looking: from inside your home site to outside Looking: from
outside to inside a third party site Are they contracts or
policies? The FTC says they are contracts The ideal is spontaneous
participation in social media, but thereality is that enterprises
must require disciplined participationaccording to rules Pointer:
make underlying rules look like spontaneous participation
(technical and process measures) 21
22. How the Two Fit TogetherPrivacy Policy Terms of Use Notice
of privacy practices Define services Definition of personal
information Rules on passwords & authentication Hosts use of
personal information Technology rules (bots, deep-linking) Sharing
of personal information Code of conduct between users Grants and
cross-grants of rights Consent Advertisement policies Access Right
to Monitor Security DMCA information Enforcement Member disputes
Warranties, disclaimers & general 22
23. Privacy controls User behavior Facebook admonitions Please
choose carefully the information you post on your profile, and that
you provide to other Members. If you make your profile freely
available to other Members, your profile should not include
information that personally identifies you, such as your telephone
number, street address, last name, email address, and any
geographically recognizable photographs. User choice Ability to
opt-in and opt-out 23
24. Employment Law Issues 24
25. Social Media for EmployersUse of Social Media to Recruit
and Screen Job Applicants.Social Media at Work. 25
26. Use of Social Media to Recruit and Screen JobApplicants
Recruiting Identify potential applicants who might not be looking
for a new job Target applicants with specific job levels and skill
sets Screening Vet job applicants for corporate culture fit Verify
qualifications on an applicants resume or CV 26
27. Use of Social Media to Recruit and ScreenApplicants73% of
employers use social networks or social media to support their
recruitment efforts (Jobvite survey, 2010).53% of employers
research job candidates on social media websites (CareerBuilder.com
survey, 2010). 27
28. Screening Applicants Online A 2008 SHRM survey found that
negative information found through social media was more likely to
affect an employer than positive information. According to
CareerBuilder.com, 2 in 5 employers had found content on a social
network site that dissuaded them from hiring a candidate. Lies
about qualifications on resumes or CVs Discriminatory comments
Questionable judgment Provocative or inappropriate photographs
28
29. Revoking Offers A soon-to-be Cisco employee posted the
following tweet on Twitter: Cisco just offered me a job! Now I have
to weigh the utility of a fatty paycheck against the daily commute
to San Jose and hating the work. Tim Levad at Cisco saw the tweet,
and tweeted him back: Who is the hiring manager? Im sure they would
love to know that you will hate the work. We here at Cisco are
versed in the web. This post went viral overnight and became an
internet sensation. The offer was subsequently rescinded. (CA Labor
& Employment Bulletin, p. 91March/April 2010.) 29
30. Pitfalls of Pre-employment Online Screening Discrimination
Failure to Hire Case Study: Gaskell v. University of Kentucky, E.D.
Kentucky, Nov. 23, 2010 Facts: The University of Kentucky wanted to
hire a Founding Director for its astronomical observatory. The
University put together a search committee which received about 12
applications for the position. The most qualified applicant by far
was Martin Gaskell. He was the top candidate until 30
31. Gaskell v. University of Kentucky (cont.) One of the
members of the search committee conducted an internet search for
information about Gaskell and found his professional website which
linked to his personal website which contained an article titled
Modern Astronomy, the Bible, and Creation. This information was
circulated to the entire search committee. From there, the search
committee discussed Gaskells religious beliefs with other
professors at the University, with the University Dean and Provost,
and with Gaskells previous employer. The search committee also
reviewed Gaskells student evaluations for references to his
religious beliefs. 31
32. Gaskell v. University of Kentucky (cont.) In the end,
Gaskell was not hired for the position. Instead, a less qualified
candidate was selected. Gaskell filed a lawsuit claiming that he
was not hired because of religious discrimination. The Courts
Decision: The court concluded that the case should go to trial
because Gaskell had presented direct evidence of discrimination.
The smoking gun? An email from the chair of the search committee.
32
33. Gaskell v. University of Kentucky (cont.) The email, with
the subject line The Gaskell Affair, stated: It has become clear to
me that there is virtually no way Gaskell will be offered the job
despite his qualifications that stand far above those of any other
applicant. Other reasons will be given for this choice when we meet
Tuesday. In the end, however, the real reason why we will not offer
him the job is because of his religious beliefs in matters that are
unrelated to astronomy or to any of the duties specified for this
position. (For example, the job does not involve outreach in
biology.). . . If Martin were not so superbly qualified, so
breathtakingly above the other applicants in background and
experience, then our decision would be much simpler. We could
easily choose another applicant, and we could content ourselves
with the idea that Martins religious beliefs played little role in
our decision. However, this is not the case. As it is, no objective
observer could possibly believe that we excluded Martin on any
basis other than religious. . . . 33
34. How to Avoid Claims Arising From Social MediaSearches of
Job ApplicantsImplement and consistently follow practices and
procedures regarding social media screening of applicants.Train
hiring personnel. 34
35. Suggestions and Considerations for a SocialMedia Screening
Practice and Procedure Create a list of the lawful information the
company wants to find out from the online search and use that list
in every search. Decide whether the company will screen all
applicants for all positions, or only for certain positions. Have a
neutral person conduct the online screening, filter out any
protected information about the applicant, and report to the
decision maker only information that lawfully can be considered.
Consider whether to conduct the online search before or after the
in-person interview. Consider whether to provide notice to
applicants and whether to obtain the applicants consent before
conducting the online search. Notice and consent is required if
using a third party vendor. 35
36. Social Media at Work 36
37. Employees use of social networking sites During work hours
using the employers computer system. On the employees own time
using the employers computer system. On the employees own time and
about the company. On the employees own time and about personal,
but potentially illegal or otherwise objectionable, topics. 37
38. Overview of Employment Law Issues Fair Employment Practices
Invasion of Privacy Stored Communications Act Labor Law Wage and
Hour 38
39. Fair Employment Practices Two general areas of concerns:
Disparate Treatment and Harassment. Disparate Treatment: Posts by a
manager or supervisor on a social media site may be used as
evidence of a discriminatory animus or provide admissions to
support a discrimination claim. Discriminatory application or
enforcement of the employers social media policy. Harassment: The
use of blogs and other social media outlets to create an unlawful
hostile work environment for an employee or group of employees in a
protected class. 39
40. Maremont v. Susan Fredman Design Group,Ltd., 2011 WL 902444
(N.D. Ill. 2011) Plaintiff, Jill Maremont, was the Director of
Marketing, Public Relations and e-commerce for an interior design
firm. She had a popular personal following on Facebook and Twitter,
and posted to both sites for work. She created and posted to a blog
for the interior design firm. Plaintiffs picture appeared on each
Facebook post and Tweet. She was seriously injured in an accident
and was unable to work for 9 months. 40
41. Maremont v. Susan Fredman Design Group,Ltd. While Maremont
was out of work, her co-workers made Facebook posts and Tweets that
looked like Maremont sent them. She asked them to stop but they did
not. She finally changed her passwords. She decided not return to
work because of the firms hostility toward her. 41
42. Maremont v. Susan Fredman Design Group,Ltd. Maremont
brought a false endorsement claim under the Lanham (Trademark) Act
against her employer. False endorsement occurs when a persons
identity (the trademark) is connected with a product or service in
such a way that consumers are likely to be misled about that
persons sponsorship or approval of the product or service. Her
employer, the interior design firm, filed a motion to dismiss.
42
43. Maremont v. Susan Fredman Design Group,Ltd. The Court
denied the motion to dismiss because Maremont alleged: She was
well-known in the interior design community and had a popular
personal following on Facebook and Twitter. She used Facebook and
Twitter in a commercial context as an employee of the interior
design firm. Her employer deceptively used her name and picture to
make posts on Facebook and Tweet. 43
44. Maremont v. Susan Fredman Design Group,Ltd. Lessons
Learned: If you want an employee to post to social media sites as
part of his or her job duties, be sure to have the employee do so
using the companys Facebook page or Twitter name or blog. The
company can control the content of what is posted and what is not.
If the employee is unable to post or no longer works for the
company, the company keeps the page/blog/name and the following. No
liability for Lanham Act violations. 44
45. Pietrylo v. Hillstone Restaurant Group, 2009WL 3128420
(D.N.J. 2009) Former employees claimed violation of Stored
Communications Act. The Act makes it an offense to intentionally
access stored communications without authorization or in excess of
authorization. Exception: Conduct authorized by a user of the
service with respect to the communication intended for that user.
Example: A Facebook account holder may authorize a non- account
holder to access the account holders account. 45
46. Pietrylo v. Hillstone Restaurant Group At issue was whether
an employee voluntarily granted access to management to access the
employees account on MySpace to access the Spec- Tator group, which
housed pages created by employees to vent about work. 46
47. Pietrylo v. Hillstone Restaurant Group The employee
testified that: She had to give her MySpace password to her
supervisor because she worked for the restaurant and for the
supervisor. She would not have given her supervisor the password if
he had not been a manager. She would not have given her MySpace
password to other co-workers. She felt that she would have gotten
in trouble if she had not given him the password. 47
48. Pietrylo v. Hillstone Restaurant Group (2009) Jury verdict
for the former employees The restaurant, through its managers, had
knowingly or intentionally or purposefully accessed the Spec-Tator
group without authorization on 5 occasions. The court denied the
defendants motion for new trial and motion for judgment as a matter
of law, concluding that the jury could reasonably infer that the
employees purported authorization was coerced or provided under
pressure. 48
49. Wage and Hour (Fair Labor Standards Act) Nonexempt
employees Minimum wage for all hours worked Overtime for all hours
worked over 40 in a workweek Use of social media on behalf of
employer May be hours worked, if employer had actual or
constructive knowledge and gave explicit or implicit consent. Even
if outside of normal working hours. 49
50. Labor Law/National Labor Relations Act SECTION 7 OF NLRA
Provides all nonsupervisory employees the right to engage in
protected and concerted activity Includes discussions of terms and
conditions of employment Affords protection to non-unionized
employees as well as employees represented by union 50
51. Labor Law (continued) SECTION 7 OF NLRA Employer violates
section 7 if employees would reasonably interpret work rule to
limit concerted activity. Violation occurs even if employer never
enforces rule in a way that infringes on Section 7 rights. Work
rules relating to social media posts are unlawful if they can be
reasonably interpreted as limiting employees right to discuss terms
and conditions of employment. 51
52. Labor Law (continued) Examples of overly restrictive
policies include rules prohibiting posting or discussion of: Wages
or benefits. Gossip Derogatory statements about employer or
managers. Companys business 52
53. Facebook & Protected Concerted ActivitiesProtected
Concerted Activity Individual Grievances and GripesProhibiting
disparaging, discriminatory Posting that customers are rednecksor
defamatory comments about and hoping that they choke on glass
asCompany, supervisors, or coworkers they drove home drunk; no
response from co-workers (although he received a Facebook message
from his boss that he was fired!)Criticizing supervisor on Facebook
Complaining on Facebook to sister-in- law about not getting a raise
and doing the work of waitresses without tipsPosting comment on
Facebook Posting that mental institution wherecriticizing food and
beverage served at employee worked (actually a homelesssales event
because poor quality affected shelter) was spooky at night;
employeesales commissions; employee was was not friends with
co-workers onfriends with co-workers on Facebook Facebook 53
54. Labor Law (continued) Unlawful Surveillance: Monitoring or
creating impression that employer is monitoring employees private,
off hours social media posts related to union organizing. However,
it is lawful to routinely scan a broad range of social media sites
for references to the employer or its products/services. The
employer is not focused on or creating the impression of focusing
on union activity. Thus, the employer should not be seen as spying
on its employees protected and concerted activities. 54
55. Minimizing the Risks because of Employees Useof Social
Media Implement and consistently follow policies and procedures
regarding employees use of online social networking, blogging, and
other social media sites (e.g. YouTube) at work and outside of
work. Develop a (lawful and reasonable) method to check compliance
with the policies and procedures. 55
56. Basics of a Social Media Policy Define what constitutes
social media and blogging Blogging should be defined to mean all
web postings, such as those in chat rooms, on bulletin boards, and
social networking sites (micro-blogging). On social media sites
that are not employer-sponsored, employees who mention their
employers name should be required to include a disclaimer that the
statements posted are those of the poster and do not necessarily
represent the opinion of the employer and have not been approved or
otherwise reviewed by the employer 56
57. Basics of a Social Media Policy (continued) Dont prohibit
all postings relating to the employer because that would violate
the NLRA. Specifically define what topics are off-limits. Notify
employees that the policy applies at all times. Advise employees to
notify their supervisor or human resources about possible
violations of the policy or other company policies, such as anti-
harassment policies. Notify employees that the company monitors
internet usage on company- provided equipment and system for
compliance with the policy. This includes an employees personal
email account that is accessed using the companys computer system.
57
58. Basics of a Social Media Policy (continued) A social media
policy may prohibit: The disclosure of the employers confidential
information (which should be defined elsewhere in the handbook)
Disparaging remarks about the employers products or services
Disparaging and defamatory comments about competitors and other
third-parties (especially if the poster identifies his or her
employer) Postings that threaten, harass or intimidate coworkers
Postings that endorse the employers products or services. 58
59. Basics of a Social Media Policy (continued) A social media
policy may prohibit: Employees from using the employers trademark
or logo without consent of a designated company official Employees
from using the employers computer systems or network access for
posting to social media sites that are not sponsored by the
employer Postings that violate patient confidentiality or privacy
rights under state or federal law (e.g., HIPAA). Where employees
are permitted to post on behalf of or for the employer, include
policies limiting when employees may make those posts so as to
control overtime. 59
60. Monitoring Employee Use ofSocial Media Sites (Lawfully) Set
up Google alert for company name and other key words. Conduct key
word search through company server. Use of Internet search tools
that provide real-time and interactive social media monitoring and
analytics Examples: sysomos, buzzstream, biz360, customscoop,
echosonar, sentimentmetrics (not an endorsement) 60
61. THANK YOUJennifer A. Mansfield Lindsay Dennis
[email protected][email protected] 50 N.
Laura Street, Suite 3900 Jacksonville, FL 32202 904-353-2000
61