Social Media: Risks and Rewards

Transcription

1 Social Media: Risks and Rewards Nilesh (Neal) Patel Member Frost Brown Todd LLC 3300 Great American Tower Cincinnati, OH Linkedin.com/in/nealpatel1/ 2013 Frost Brown Todd LLC

2 Social Media Meaning & Common Traits Social = shared, public, collective, group, etc. Media for & available to the Masses Common Traits Instant Free and/or Cheap Widespread Broadcasting/Dissemination Viral easy to pass on, share, etc. Often Anonymous Irreversible & Permanent

3 Social Media Who Uses It?

4 Social Media Who Uses Facebook? 1 in every 13 people on Earth is on Facebook 35+ demographic represents more than 30% of the entire user base 71.2 % of all USA internet users are on Facebook In 20 minutes 1,000,000 links are shared on Facebook In 20 minutes 1,484,000 event invites are posted In 20 minutes 1,323,000 photos are tagged In 20 minutes 1,851,000 status updates are entered In 20 minutes 2,716,000 photos are uploaded In 20 minutes 2,716,000 messages are sent In 20 minutes 10.2 million comments are posted In 20 minutes 1,587,000 wall posts are written 750 million photos were uploaded to Facebook over New Year s weekend 48% of young Americans said they found out about news through Facebook 48% of 18 to 34 year olds check Facebook right when they wake up Source:

5 Social Media How Companies Use It For Internal Purposes Recruiting and Hiring Background Checks and Investigations Building Team Rapport/Employee Engagement Communications & Emergency Management For External Purposes Marketing/PR Business Networking Customer Service

6 Social Media External Uses User Generated Content ( UGC ) Forums, Blogs, Reviews, etc. Viral/Buzz/Guerrilla Apps/ Geo based interaction Word of Mouth Refer-A-Friend Promotions New Products/Personalized products

7 Social Media Risks Business Relinquishing control over messaging to consumers People do bad things Impact to brand Legal Copyright, trademark and other intellectual property Fair and Truthful Advertising Transparency Privacy

8 Social Media Business Risk #McDStories When u make something w/pride, people can taste it Dude, I used to work at McDonald s. The #McDStories I could tell would raise your hair. One time I walked into McDonalds and I could smell Type 2 diabetes floating in the air and I threw up. #McDStories. These #McDStories never get old, kinda like a box of McDonald s 10 piece Chicken McNuggets left in the sun for a week Ate a McFish and vomited 1 hour later.the last time I got McDonalds was seriously 18 years ago in college.. #McDstories

9 Social Media Business Risk

10 Social Media Business Risks

11 Social Media Business Risks Uh, one minor caveat on that... We do not have the right to share guest personal information.... except when we share guest personal information

12 Social Media Legal Risks

13 Social Media Special Laws Digital Millennium Copyright Act ( DMCA ) Section 512(c) Communications Decency Act ( CDA ) Section 230

14 Social Media DMCA Provides protection for copyright infringement by others using your website Does not protect you from your action Facilitating posts does not make you the publisher Prescreening does not make you the publisher Question of control over the actual content published. Follow the rules and requirements (procedural and substantive)

15 Social Media DMCA Notice of Infringement Now what? You now have actual knowledge of infringement Expeditiously take it down Put materials back up within days if: Subscriber serves a sworn counter notification that materials do not infringe; and Copyright owner has not filed an action against the subscriber.

16 Social Media DMCA Requirements Easily found copyright policy Instructions for lodging infringement complaints Register agent with U.S. Copyright Office Enforce copyright policy No actual knowledge

17 Social Media CDA No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Immunity for tort claims based on content published by others No take down requirement Does not apply to intellectual property infringement

18 Social Media Limiting Risk Control What You Can Provide pre-cleared content (music, images, etc.). Define appropriate uses of names and logos. Establish the Rules (Terms, Privacy Policy, etc.) Appropriate vs. Inappropriate content. IP infringement, DMCA, standard terms, etc. Ownership and use of content. Preserve rights. Implement Review Processes

19 Social Media Limiting Risk Treat All of It Like Advertising Know Your Brand & Factor in Worst Case Scenario Remember, people will do bad things Follow platform rules Facebook, Twitter, etc. Keep the Gaps in Mind

20 Social Media Mind the Gaps Potential Claim Terms & Conditions DMCA CDA Copyright Infringement Trademark Infringement Defamation Right of Publicity False Advertising Idea Misappropriation Personal Injury Statutory Claims

21 Social Media Endorsements FTC Guide on Endorsements & Testimonials Notable revisions in 2009 include: Required Disclosures Liability of Advertisers and Endorsers

22 Social Media Endorsements Endorsements are: any ad message that consumer is likely to believe reflects the opinions, beliefs, findings, or experience of a party other than the advertiser In social media, line between third party endorsements & advertiser driven messaging not always clear

23 Social Media Endorsements To avoid deception: all claims by endorser must be truthful and must have substantiation must disclose any material connection between the advertiser and endorser (e.g., compensation, free goods, etc.) where the connection is unlikely to be known to viewers

24 Social Media Endorsements Advertisers can be liable if an endorser is untruthful or fails to disclose material connection. Though endorsers also responsible, FTC s focus is on advertisers. When do material connections arise?

25 Social Media Endorsements (Vendors)

26 Social Media Endorsements (Product Use)

27 Social Media Endorsements

28 Social Media Endorsements (Cash)

29 Social Media Endorsements (Employees)

30 Social Media Endorsements The Dilemma: Activities geared at creating buzz involve encouraging but not controlling discussions The talk is often unscripted/not reviewed Responsibility but no control Application to new(er) platforms

31 Social Media: Employment Considerations Disadvantages of Social Media Can be a black hole for productivity Gives employees a megaphone for complaining about work Minor gaffs can become viral PR nightmares overnight Employee use of social media can subject employers to legal liability

32 Social Media: Legal Concerns for Employers Pre-Employment Screening Discrimination and Harassment Claims By Current Employees Claims Based On Employee Monitoring and Privacy Concerns Potential Liability to Third Parties

33 Social Media: Legal Concerns for Employers Pre-Employment Screening Potential FCRA issues TMI (race, medical condition, etc.) Inconsistencies in search methods

34 Social Media: Legal Concerns for Employers Discrimination and Harassment Claims By Current Employees More TMI concerns Posts, comments, and other employee content... hostile work environment Inconsistency in enforcing policies

35 Social Media: Legal Concerns for Employers Claims Based on Employee Monitoring and Privacy Concerns Federal laws prohibit unauthorized access to, or interception of, electronic information (SCA, CFAA, ECPA, etc.) Invasion of Privacy Claims State regulations on off-duty conduct Whistleblower protections Breach of Contract/ Just Cause Protections National Labor Relations Act Concerns

36 Social Media: Legal Concerns for Employers The NLRB s Focus on Social Media NLRA protects both union and non-union employees who participate in protected concerted activity. Protected concerted activity usually involves an employee acting with or on behalf of other employees to improve terms and conditions of employment. Social Media is the NLRB s new feeding ground.

37 Social Media: Legal Concerns for Employers The NLRB s Focus - Examples An employee asked coworkers on her Facebook page for their reaction to another employee s complaints about work quality and staffing levels at the employer A salesman at a car dealership was critical on his Facebook page about the dealership s handling of a sales event and posted mocking photographs that included his coworkers

38 Social Media: Legal Concerns for Employers The NLRB has also been paying attention to social media policies. Examples of violations: Prohibitions against inappropriate discussions about the company, management, and/or workers Prohibition against statements that lack truthfulness or that might damage the reputation or goodwill of the employer, its staff, or employees Prohibition against statements that lack truthfulness or that might damage the reputation or goodwill of the employer, its staff, or employees Prohibition on revealing, including through the use of photographs, personal information regarding coworkers, company clients, partners, or customers without their consent

39 Social Media: Legal Concerns for Employers Potential Liability to Third Parties Defamation Negligent Hiring or Retention Advertising & Marketing claims

40 Social Media: Reducing Your Risk Use policies to make clear that employees have no expectation of privacy Make clear that guidelines and rules on appropriate conduct apply to social media Establish internal guidelines for monitoring employees use of social media Draft, implement and train on social media policies

41 Social Media: Reducing Your Risk If you research job candidates online: Obtain consent to Internet searches via employment applications Ask non-decisionmaker to conduct search and provide only information you need to know Decide when to conduct the search, and conduct it at the same point in the process for all applicants Document your search results When using third party for the search, be mindful of FCRA

42 Social Media: Reducing Your Risk If you monitor an employee s or applicant s use of social media: Put employees on notice that their social media presence may be monitored Monitoring efforts must be consistent and for legitimate business purposes Limit searches and monitoring to sites that are readily accessible by the public

43 Social Media: Reducing Your Risk If you monitor an employee s or applicant s use of social media: No false identities No friending to monitor off-work conduct Don t access password protected information Be prepared for TMI

44 Social Media: Reducing Your Risk Before you discipline or discharge an employee for inappropriate use of social media: Consider legal limits on policing off-duty conduct Use same criteria as used for other decisions to discipline or discharge Have you investigated all of the facts? Would a reasonable person agree with your method? Would a reasonable person agree with your decision? Did the employee have fair notice of the employer s social media policy? Is this policy being applied consistently? Consider NLRA issues