social media law: the legal do's and don'ts of social media

SOCIAL MEDIA LAW

Shawn E. Tuma@shawnetuma

[email protected]

Presented forTrustPoint Management Group

August 10, 2012

The Legal Do’s and Don’ts of Social Media

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Tweet it up:

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Let’s Get Social!

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Notes1. Add Pictures

2. Streamline sections – 45 minutes

3. Insert Copyright

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Let’s Get Social!

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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 legal and marketing

BUT!!!

I am “sold out” on social media and an avid user … and I don’t want to get sued either …www.brittontuma.com


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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!www.brittontuma.com


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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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Topics to Cover

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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


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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

this past week, Illinois became one of 2 states to enact a law prohibiting this; eff. date: 1/1/13

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It Is

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!

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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 …

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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 (7/15/11)

each service or site has a contract

contract lawwww.brittontuma.com


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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 and strategies

secret business initiatives and plans

business situational awareness

intellectual property law: trade secretswww.brittontuma.com


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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 lawwww.brittontuma.com


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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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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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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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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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MINIMIZING THE RISKS OF SOCIAL

MEDIA IN BUSINESS

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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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Minimizing the Risks ofSocial Media in Business

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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


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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!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)

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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


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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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MINIMIZING OTHER DIGITAL BUSINESS

RISKS

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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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Minimizing OtherDigital Business Risks

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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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Primary Law for Misuse of Computers

Computers …

Why is the Computer Fraud and Abuse Act important?

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“Everything has a computer in it nowadays.”

-Steve Jobs

Why Computers?

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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;”

The CFAA says

What is a computer?

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What about

What is a computer?

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This may limit the problem of applying it to alarm clocks, toasters, and coffee makers

The CFAA applies only to “protected” computers

Protected = connected to the Internet

Any situations where these devices are connected?

What is a “protected” computer?

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•TI-99 •3.3 MHz Processor•16 KB of RAM

•Leap Frog Leapster•96 MHz Processor•128 MB of RAM

•iPhone 4•800 MHz Processer•512 MB of RAM

Perspective

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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 extortionwww.brittontuma.com


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Summary

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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!


Let’s Talk!

www.brittontuma.com

www.shawnetuma.com

Shawn E. Tumad. 469.635.1335m. 214.726.2808

e. [email protected]@shawnetuma

© 2012#socialmedialaw