AN INTRODUCTION TO LEGAL RISKS IN THE EMERGING AGE OF SOCIAL MEDIA

TURNSONPOINT CONSULTING BUSINESS AND LEGAL STRATEGY

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SOCIAL MEDIA – WHAT IS IT? �  “Social Media – It is where the Evidence Is” Mayer-Brown, LLP March, 2011

Image by Trademark Sentinel

Commonality of the legal risks in Social Media �  every law, every statute and regulation that applies to you as an

individual or a business is applicable. �  Old Wine in New Bottles – old causes of action can find a new

home in social media

�  And – all of your activities are: *trackable and traceable - cookies *memorialized in discoverable form *evidence – e discovery – any postings online should

be considered the same as email or text message – it is discoverable and can lead to liability

available to millions

A sampling of what you or your business or your clients can be sued for

�  Copyright Infringement - freely copying what one see’s on the Internet

�  Trademark Infringement – confusing consumers about a brand

�  1st Amendment -Posting of inappropriate or offensive content; online speech (harassment)

�  Title VII; various state laws-Discrimination in hiring; monitoring of employees

•  Reputational Damage-when negative information released is not contained and acted upon quickly, it can spiral out of control. In 24 hours, a video can be viewed more than ten thousand times, an article shared thousands of times through Facebook; Twitter

A sampling of what you or your business or your clients can be sued for (cont’d.)

�  Invasion of Privacy – U.S. and International U.S. – PII (personally identifiable information) International – EU Data Protection Directive 1995/46 EU amended 2011 -Proprietary and confidential information NDA; legal agreements; trade secrets -Defamation/false light Example: Twitter is not liable but you or your business or your client’s company can be Simorangkir v. Love

§  False Advertising - liability for failing to disclose material connection with endorsers – FTC Guideline (16 CFR § 255)

Privacy; Intellectual Property; Online Advertising

1. Privacy �  are postings on social media sites private?

o A public posting on a public site is generally not private o A posting may be private if it is on a password protected site •  Can an employer check up on employees through

social media? o LinkedIn to verify information supplied by an applicant o Twitter, Facebook posting that may be viewed as harassment of

other employees (Espinoza v. County of Orange, 2012 WL 4201149 (Cal.App.Ct. Feb. 9, 2012)

o Michigan Asst. Attorney General terminated for harassing first openly gay president of U of M.

Image by Tamsandroid

Privacy; Intellectual Property; Online Advertising (cont’d.)

o Cannot use information to discriminate against employees or candidates due to race, religion, sexual orientation, marital status, pregnancy, political affiliations, disabilities (Title VII and various state laws) and CANNOT be the basis of the decision – need to be able to prove that.

Examples of famous tweets “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work”’ Ketchum public-relations exec. Who said of client FedEx’s hometown: “I would die if I had to live here!”

Privacy; Intellectual Property; Online Advertising (cont’d.) •  Can an employer monitor employee activity online to

assess if there is a problem with information being leaked, or inappropriate messages be posted?

Be cautious: California, Colo., New York, North Dakota don’t allow adverse employment actions for legal off-duty conduct

-could lead to invasion of privacy claims -risk of discrimination, retaliation, and whistleblower claims California, Colo., Indiana, Oklahoma, South Carolina and Utah require employer to obtain consent before monitoring

Image by Online Reputation Management

Privacy; Intellectual Property; Online Advertising (cont’d) 2.  Intellectual Property A. Copyright

Who owns the Copyright material posted on Social Media?

The original author owns the copyright to anything posted on Social Media

Digital Millennium Copyright Act (DMCA)-limits liability for service providers (Facebook; LinkedIn through an imposed notice-and takedown-regime)

Pinning Copyright Complaints on Pinterest

Privacy; Intellectual Property; Online Advertising (cont’d)

B. Trademarks – TM, ® •  Infringement on social media sites takes a variety of

forms, including faux, imposter, parody, and fan accounts, as well as improper use of logos on profile pages

•  There may be liability for creating a user name or tradename that confuses other users about your relationship to a Trademark owner, or dilutes a trademark owners brand

•  Brand owners can typically file notices of (non-copyright) IP infringement on social media platforms [summary sheet]

Privacy; Intellectual Property; Online Advertising (cont’d)

o  Brand owners can file DMCA takedown notices on all major social media platforms [summary sheet]

B.1 Trademark Infringement on Twitter o  Danyelle Freeman is a restaurant critic for the New York Daily News using the name

“Restaurant Girl”; Adam Robb Rucinsky uses Freeman’s writing style and Freeman’s name “Restaurant Girl” for a writing exercise using Twitter and a Blog

o  Freeman is claiming that Rucinsky’s Twitter account and blog impersonating Freeman is infringing on her trademark name

o  The question is whether readers would be able to t ell whether they are reading Freeman’s or Rucinsky’s blog, despite his recent disclaimers on Rucinsky’s Twitter and blog accounts

o  Does Rucinsky have a valid parody defense?

Privacy; Intellectual Property; Online Advertising (cont’d)

B-2. Trade Secrets Can be easily leaked on social media •  An employee leaking Trade Secrets has breached the

duty of loyalty, misappropriation of Trade Secrets, breach of contractual confidentiality, or non-disclosure agreements, which can be grounds for termination

•  What happens if a Trade Secret is leaked? •  Trade secret protection is based on “reasonable

efforts” to keep information secret •  Once leaked, it is fair game

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Privacy; Intellectual Property; Online Advertising (cont’d)

3.  Online Advertising FTC Guidelines for online Advertising

FTC Act’s prohibition on “unfair or deceptive acts or practices” broadly covers advertising claims, marketing and promotional activities, and sales practices in general.

q  This Act is not limited to any particular medium Therefore applies to the Internet Rules prohibit specific acts or practices that the FTC has found to be unfair or deceptive

Image by ATXPublishing

Privacy; Intellectual Property; Online Advertising (cont’d)

�  Guidelines help businesses to comply with the law by providing examples or direction on how to avoid unfair or deceptive acts or practices – find guidelines for ads at….

�  Online ads are subject to the basic principles of advertising law �  Advertising must be truthful and not misleading �  Advertisers must have evidence to back up their claims �  Advertisements cannot be unfair

must look at the ad as a whole

Privacy; Intellectual Property; Online Advertising (cont’d)

Tweets, Facebook and other social media can qualify as endorsements and testimonials in advertising and therefore can be subject to FTC rules and guidelines

FTC Guides concerning Use of Endorsements and Testimonials in Advertisements: http://www.ftc.gov/bcp/guides/endorse.htm

False Advertising o  Federal/state laws apply equally to traditional and new media platforms o  Some social media platforms also have advertising policies to prohibit false or

misleading advertisements New Guidelines coming? FTC suggesting that bloggers and social media marketers who use

false statements about products they promote will be held liable

Take Aways 1.  No one is immune to the risks to their personal and

professional lives associated with living and operating in the Digital Era

2.  Read carefully the privacy policies/terms of use of all social media sites you are going to use so you are aware of your risks if you violate those policies

3.  Develop an integrated business and legal strategy social media policy that meets either or both your internal and external needs

For more conversations……….

Contact Me: Judith Delaney judith@turnsonpoint.com 1-415-244-1360 www.turnsonpoint.com