The Legal Implications of Social Media for Business

Kelly Twigger | ESI AttorneysSara Meaney | Comet Branding + PR

PRESENTERS |

Kelly Twiggerowner and founder

ESI Attorneys

Former partner Quarles & Brady LLPGuest lecturer, Marquette University Law School

Milwaukee Business Journal: Forty Under 40 Class of 2010E-discovery expert

Kentucky basketball fanaticKentucky Derby -- Official Host

First Computer: IBM AS2First Blog Post: December 2007

First Tweet: August 2009

PRESENTERS |

Sara Meaneypartner | left brain | co-owner

Comet Branding + PR

Social media, PR and strategic marketing proCo-founder of Social Media Club, Milwaukee

Guest lecturer, Communications: UW-Whitewater, MarquetteMilwaukee Business Journal: Forty Under 40 Class of 2010

Co-host of Comet RadioBlogger, Twitterer, Foursquare junkie

Metrics geekFavorite karaoke song: Don’t Stop Believin’

First computer: Commodore 64First Tweet: August 2008Twitter followers: 5,183

• Disclaimer, Assumptions and Assurances

• The Business Case for Social Media

• Legal Issues in Social Media

• Kelly: Mitigation measures: training, education

• Kelly: Document management

• Thoughts on organizational policy

• Questions

SOCIAL MEDIA | OVERVIEW |

POP QUIZ | SOCIAL MEDIA |

1. What do you call a message sent out via Twitter?

a. SMS

b. Tweet

c. Twit

d. Perplexing

POP QUIZ | SOCIAL MEDIA |

1. What do you call a message sent out via Twitter?

a. SMS

b. Tweet

c. Twit

d. Perplexing DID YOU KNOW?

50 million tweets

are sent per day

POP QUIZ | SOCIAL MEDIA |

2. Which group is the largest user demographic on Facebook?

a. 0 - 17

b. 18 - 24

c. 25 - 34

d. 35 - 54

e. 55+

POP QUIZ | SOCIAL MEDIA |

2. Which group is the largest user demographic on Facebook?

a. 0 - 17

b. 18 - 24

c. 25 - 34

d. 35 - 54

e. 55+

POP QUIZ | SOCIAL MEDIA |

3. How many searches does Google handle per day?

a. 15.3 million

b. 32.7 million

c. 807.4 million

d. 1.3 billion

e. 2.7 billion

POP QUIZ | SOCIAL MEDIA |

3. How many searches does Google handle per day?

a. 15.3 million

b. 32.7 million

c. 807.4 million

d. 1.3 billion

e. 2.7 billion

source: comScore

Does not include

BING, Yahoo, or

any other search

engines

WOW.

• This is not another Social Media 101 lecture.

• This contents of this presentation will not strengthen your argument against using social media for business.

• We are unapologetic users and advocates for the strategic use of social media for business.

• Tweeting live comments during this session may result in shared knowledge and business opportunities. Proceed with caution.

SOCIAL MEDIA | DISCLAIMER |

• You have used Google at least once in your lifetime. Or you know someone who has.

• You’ve heard of Twitter, Facebook, LinkedIn and YouTube before.

• You acknowledge that the aforementioned social media sites have some relevance to you and/or your business.

• You want to know more about the uses of these sites and the implications/risks involved.

SOCIAL MEDIA | ASSUMPTIONS |

• You’ve come to the right session.

• You can ask questions both during and after the presentation.

• You are encouraged to use social media during the presentation; we will not be offended or distracted by it.

SOCIAL MEDIA | ASSURANCES |

• Audience attention span is short

• Increasingly noisy online marketplace

• Cross-functional applications

• Measurable: cause-effect

• ROI - if leveraged strategically

SOCIAL MEDIA | BUSINESS CASE |

BUSINESS CASE | ATTENTION SPAN IS SHORT |

*source: Nielsen Norman Groupn= 45,000+ page views

YIKES!

*Online readers only

read 20%

of the words on the

screen.

BUSINESS CASE | IT’S NOISY ONLINE |

DID YOU KNOW?

Social media

contributes to your

SEO and improves

findability.

BUSINESS CASE | CROSS-FUNCTIONAL APPLICATIONS |

Customer service via Twitter

Direct sales through TwitterCrowd-sourced product innovation: IdeaStorm

Entrepreneur community hubMarket research

Facebook for recruitment: 45,000+

BUSINESS CASE | MEASURABLE: CAUSE - EFFECT |

B.S. Example: (Before Social Media)

A.S. Example: (After Social Media)

BUSINESS CASE | DIRECT RETURN ON INVESTMENT |

B2B client example:

Significant increase in qualified client prospects

More new business meetings

BUSINESS CASE | WORKING IT OUT |

• Marketing/Communications and Legal can sometimes be adversarial.

• Gotta get past that for social media to be effective.

• Knowing the facts will support collaboration.

WHAT YOU SHOULD KNOW | LEGAL ISSUES |

• Content ownership -- whose is it and what does delete mean?

• Utilizing third party content (RT@, YouTube)

• Employer liability for content

• Using social media for hiring -- do’s and don’ts

• Discoverability of ESI on social media

• How to mitigate risks

LEGAL ISSUES | BASIC TENENTS |

• Very little case law yet on these issues; law still developing

• ESI = Electronically Stored Information• Seek legal advice where risk is high• Same law applies to electronic communications as written ones

If you post it, you own it

LEGAL ISSUES | POSTING THIRD PARTY CONTENT |

• U.S. Copyright Act, 17 U.S.C. Section 101, et. seq. prohibits using any third party content, i.e. photos, videos or songs taken by or belonging to someone else; civil and criminal with treble damages and fees

• Digital Millenium Copyright Act (sec. 512) -- protects site from liability

User/poster owns content

LEGAL ISSUES | WHO OWNS POSTED CONTENT? |

• Text

Deleted does not mean gone

LEGAL ISSUES | UTILIZING SOCIAL MEDIA FOR HIRING |

• Posting recruiting information

• Reviewing social media sites for prospective hires

LEGAL ISSUES | DISCOVERY OF ESI ON SOCIAL MEDIA |

• Rules governing discovery of information in litigation expanded to allow for discovery of ESI

• All ESI that is relevant or responsive in litigation is discoverable

• Same level of analysis of written materials put out by companies needs to be made with social media; a tweet can and will be evidence

LEGAL ISSUES | DISCOVERY OF ESI ON SOCIAL MEDIA |

Uncle Sam knows social media and he knows how to get it

And now he owns it too!

LEGAL ISSUES | MITIGATING THE RISKS |

• Establish well thought out, readable policy for acceptable use of social media

• Provide age appropriate training for users; consider video and written policy

http://www.sun.com/communities/guidelines.jsp

LEGAL ISSUES | MITIGATING THE RISKS |

• Establish communication between legal and dept utilizing social media for legal review

• Understand retention of ESI for sites you are using

• Develop and execute on planned social media strategy; avoid surprises or rogue employees

LEGAL ISSUES | SOCIAL MEDIA GOLDEN RULES |

When in doubt, don’t.

You are personally responsible for material you post.

Always identify yourself.

Identify personal opinions as personal.

Be consistent, ethical and respectful.

THANK YOU | QUESTIONS? |

QUESTIONS?

THANK YOU | CONTACT US |

ktwigger@esiattorneys.comTwitter: @kellytwiggerPhone: 414.375.2015

Web: esiattorneys.com

sara@cometbranding.comTwitter: @sarameaneyPhone: 414.672.8777

Web: cometbranding.com

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