This 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.
6. 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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7. Social Media Law:
inherent risks
natural tension between legal and marketing
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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8. My Goal:
find an acceptable balance
educate you on risks of using social media, along
with other digital business risks
help show you some ways to minimize those risks
Remember: social media is a tool – what you say and
do is much like “real life”
“Real life” rules still apply – use your common sense!
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9. what is social media law
traditional areas of law incorporated
practical examples of how they arise
how to minimize the risk
can’t eliminate, only minimize
social media policies
workplace training and guidance
cyber-insurance
other digital business risks
data breach & hacking
computer fraud / Computer Fraud and Abuse Act
Q&A
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10. 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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11. 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
this past week, Illinois became one of 2 states
to enact a law prohibiting this; eff. date:
1/1/13
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13. Look to Common Law
contract law
intellectual property law
torts – defamation
regulatory law
employment law
evidence law
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14. You can’t protect against what you
don’t know, so …
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15. 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 (7/15/11)
each service or site has a contract
contract law
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16. 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 and strategies
secret business initiatives and plans
business situational awareness
intellectual property law: trade secrets
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17. Who wants to get sued?
infringement of trademark
infringement of copyright
DMCA Takedown Request
right to publicity
name, voice, signature, photo, likeness (statutory after death)
common law while living if for value
must have a license or use creative commons
intellectual property law
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18. Who wants to get sued some more?
what you (and your employees) say can hurt you!
business disparagement
tortious interference
defamation (libel & slander)
false advertising & false warranties
fraud & negligent misrepresentation
harassment and cyber-bullying
“puffery” of facts
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19. Who wants to get investigated by the
Feds?
FTC – Investigated Hyundai for not disclosing incentives
given to bloggers for endorsements.
HHS & OCR – could have investigated hospital employee
who posted patient pictures and “PHI” on Facebook (“it’s
just Facebook!”)
SEC – false statements made in raising funds (SEC v.
Imperia Invest. IBC) or wrongful disclosures of information
regulatory law
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20. What are some real trouble spots?
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
Employment issues are one of the main areas in
which legal and general business problems arise
Discussed in next section
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21. Can you guess what will be used against you if
any of these problems arise?
social media is evidence – very powerful evidence!
electronically stored information (“ESI”) is quickly
becoming the most useful form of evidence
available
evidence from social media is now obtained and
used in virtually every kind of lawsuit and
investigation
we now have complete records of 2-way
communication stream – like all calls recorded!
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23. 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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24. 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
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25. 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!
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26. 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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27. 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)
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28. 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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32. 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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34. 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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35. Customer Information – do you retain it on your
system?
Data Breach
Effective 9/1/12, if you conduct business in Texas and your system
is breached and your customer’s unencrypted “sensitive personal
information” is, or is reasonably believed to have been
compromised, must notify all Texas residents of breach.
The notice must be given “as quickly as possible” and failure or
delay in doing so results in a fine of $100.00 per individual per day
(not to exceed $250,000)
Notice may be made through written or electronic means though
it can be given by major media outlets if the cost of providing
notice exceeds $250,000 or the number of persons exceeds
500,000
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38. Why is the Computer Fraud
and Abuse Act important?
Primary Law for Misuse of Computers
Computers …
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39. “Everything has a
computer in it nowadays.”
-Steve Jobs
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40. The CFAA says
has a processor or stores data
“the term ‘computer’ means an
electronic, magnetic, optical, electrochemical, or other high
speed data processing device performing logical, arithmetic, or
storage functions, and includes any data storage facility or
communications facility directly related to or operating in
conjunction with such device, but …”
“such term does not include an automated typewriter or
typesetter, a portable hand held calculator, or other similar
device;”
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42. The CFAA applies only to “protected” computers
This may limit the problem of applying it to alarm
clocks, toasters, and coffee makers
Protected = connected to the Internet
Any situations where these devices are connected?
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44. The CFAA prohibits wrongfully accessing
a computer where the access
Obtains information
Commits a fraud
Obtains something of value
Transmits damaging information
Causes damage
Traffics in passwords
Commits extortion
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45. 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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