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This legally focused MENGinar will educate you on the risks of using Social Media along with other digital businesses. It will provide ways to help highlight: What is social media law? What are the more common legal issues related to businesses using social media? How social media law can impact businesses? What can be done to minimize the risks of those potential legal problems related to using social media? Do the potential issues raised by using social media mean that it is better for my company to not use social media? Shawn Tuma is a partner at the law firm BrittonTuma, a full service boutique business law firm that helps clients with all civil matters, including a full range of transaction, litigation, technology, and general counseling services. Shawn’s own broad based experience centers on business, technology, civil litigation, intellectual property litigation, and a unique expertise with cutting-edge legal issues such as computer fraud, information security, and cyber and information law. Shawn is a frequent speaker on digital business risk issues such as computer fraud, data security, and social media law.
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SOCIAL MEDIA LAW
Presented for
MENG Marketing Executives Networking Group
It is Real and, Yes, Really Can Impact Your Business
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Shawn Tuma, Partner BrittonTuma Shops at Legacy, Plano, TX 469.635.1335 [email protected] @shawnetuma blog: shawnetuma.com web: brittontuma.com
Shawn Tuma is a lawyer whose practice is focused on cutting-edge cyber and information law and includes issues like social media and emerging technology and helping businesses defend their data and intellectual property against computer fraud, data breaches, hacking, corporate espionage, and insider theft. Shawn stays very active in the cyber and information law communities:
Best Lawyers in Dallas 2014, D Magazine (Digital Information Law)
Chair, Collin County Bar Association Civil Litigation & Appellate Section
Council Member, State Bar of Texas Computer & Technology Section
College of the State Bar of Texas
Privacy and Data Security Committee of the State Bar of Texas
Litigation, Intellectual Property, and Business Sections of the State Bar of Texas
Information Security Committee of the Section on Science & Technology Committee of the American Bar Association
Social Media Committee of the American Bar Association
North Texas Crime Commission, Cybercrime Committee
International Association of Privacy Professionals The information provided is for educational purposes only, does not constitute legal advice, and no attorney-client relationship is created by this presentation.
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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
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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
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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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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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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 problems
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Legislatures want to keep up impossible
speed technology is evolving
speed culture and business environment changing
legislature too slow
Example:
• Spring 2012 - big ruckus was prospective employers asking for social media logins – the massive public outcry made it such that within months nobody in their right mind would do that
• Aug 2014: 20+ state passed or pending legislation prohibiting
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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 the accounts?
followers / connections?
each service or site has a contract
contract law
Case Study: PhoneDog v. Kravitz
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“an ounce of prevention is worth a pound of cure” PhoneDog = employer; Kravitz = employee (product reviewer / blogger)
Kravitz = @PhoneDog_Noah had 17,000 followers
Kravitz resigned, refused to turn over his Twitter account, changed handle to @noahkravitz and grew to 24,000 followers
PhoneDog sued (7/15/11), heavy litigation, settled (12/12) = 1.5 yrs of fees & Kravitz still has @noahkravitz
THE TAKEAWAY: Every company needs a contractual agreement that clearly states who owns social media accounts used on behalf of the company. It is that simple. Such an agreement can usually be included in an employee handbook, employment policies, or a social media policy. The cost of such an agreement will likely be cheaper than the very first day of litigation if a dispute arises over that issue.
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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 law
Case Study: Geolocation data
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2007 – fleet of AH-64 Apache helicopters
Soldiers’ photos had geotags with exact coordinates
Insurgents used geotag coordinates for a mortar attack that destroyed 4
US Military uses Malaysia Airlines Flight 17
So do businesses!
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source: http://defensetech.org/2012/03/15/insurgents-used-cell-phone-geotags-to-destroy-ah-64s-in-iraq/
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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 enough
DMCA Takedown Request
Google penalizes for too many
must have a license or use creative commons intellectual property law www.brittontuma.com
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Copyright Example
www.brittontuma.com Attribution: prthugp @ http://www.officialpsds.com/prthugp-Profile9747.html
License: Creative Commons
Attribution 3.0
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Who wants to get sued some more? what you (and your employees) say can hurt you!
Case Study: Bland v. Roberts – “Like” = 1st Amendment
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 be investigated by the Feds? FTC – deceptive trade practices
Investigated Hyundai for not disclosing incentives given to bloggers for endorsements.
Google (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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Specific trouble spots for marketers? Giveaways and contests can be trouble for many
reasons – do not do them on social media without having it thoroughly vetted
some sites’ TOS prohibit
jurisdiction gambling and contest rules
Example: Facebook’s Page Terms
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What if someone is talking bad about your business on social media?
defamation rules apply online
but …
the “Streisand Effect”
anti-SLAPP (Strategic Lawsuits Against Public Participation)
≠ assign copyright of reviews
≠ charge $500 per bad review
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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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• “The law has a right to every man’s evidence.”
• Courts look to social media for public posts, private messages, “Likes”, etc.
• Club’s SM before Cowboys’ Josh Brent wreck killing Jerry Brown: “I have 12 #Cowboys in theeee building!!!!!!!!!! #Privae” … “These fools buying Ace on top of Ace!!!!!!!”
• Danielle Saxton’s Facebook “selfie” wearing stolen merchandise – easy evidence!
• Daughter’s $80,000 Facebook “brag”
• If litigation is anticipated -
• cannot permanently delete account, may be able to “take down”
• cannot selectively delete posts
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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
• Do not delete if in litigation (archiving may be an option)
• Document Retention Policy
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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 compliance
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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 information www.brittontuma.com
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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)
Has continued – with several since then
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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 NLRB
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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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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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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!
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