View
7.101
Download
1
Category
Preview:
DESCRIPTION
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.
Citation preview
SOCIAL MEDIA LAW
Shawn E. Tuma@shawnetuma
stuma@brittontuma.comwww.brittontuma.com
Presented forTrustPoint Management Group
August 10, 2012
The Legal Do’s and Don’ts of Social Media
2
Tweet it up:
#socialmedialaw
www.brittontuma.com
Let’s Get Social!
#socialmedialaw
3
Notes1. Add Pictures
2. Streamline sections – 45 minutes
3. Insert Copyright
www.brittontuma.com
Let’s Get Social!
#socialmedialaw
4
5
WHAT IS SOCIAL MEDIA LAW?
#socialmedialaw
6
Social Media Law: The law that applies to and governs the use of social media.
(was that all you really wanted to know?)
www.brittontuma.com
What is Social Media Law?
#socialmedialaw
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 …www.brittontuma.com
What is Social Media Law?
#socialmedialaw
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!www.brittontuma.com
What is Social Media Law?
#socialmedialaw
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
www.brittontuma.com
Topics to Cover
#socialmedialaw
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 problemswww.brittontuma.com
What is Social Media Law?
#socialmedialaw
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
www.brittontuma.com
What is Social Media Law?
#socialmedialaw
12www.brittontuma.com
It Is
Evo
lvin
g
Ever
yday
!
#socialmedialaw
13
Look to Common Law contract law
intellectual property law
torts – defamation
regulatory law
employment law
evidence law
www.brittontuma.com
What is Social Media Law?
#socialmedialaw
14
You can’t protect against what you don’t know, so …
www.brittontuma.com
What is Social Media Law?
#socialmedialaw
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 lawwww.brittontuma.com
What is Social Media Law?
#socialmedialaw
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 secretswww.brittontuma.com
What is Social Media Law?
#socialmedialaw
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 lawwww.brittontuma.com
What is Social Media Law?
#socialmedialaw
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
www.brittontuma.com
What is Social Media Law?
#socialmedialaw
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
www.brittontuma.com
What is Social Media Law?
#socialmedialaw
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
www.brittontuma.com
What is Social Media Law?
#socialmedialaw
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!
www.brittontuma.com
What is Social Media Law?
#socialmedialaw
22
MINIMIZING THE RISKS OF SOCIAL
MEDIA IN BUSINESS
#socialmedialaw
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
www.brittontuma.com
Minimizing the Risks ofSocial Media in Business
#socialmedialaw
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 informationwww.brittontuma.com
Minimizing the Risks ofSocial Media in Business
#socialmedialaw
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!www.brittontuma.com
Minimizing the Risks ofSocial Media in Business
#socialmedialaw
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
www.brittontuma.com
Minimizing the Risks ofSocial Media in Business
#socialmedialaw
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)
www.brittontuma.com
Minimizing the Risks ofSocial Media in Business
#socialmedialaw
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 NLRBwww.brittontuma.com
Minimizing the Risks ofSocial Media in Business
#socialmedialaw
29www.brittontuma.com
Minimizing the Risks ofSocial Media in Business
#socialmedialaw
30www.brittontuma.com
Minimizing the Risks ofSocial Media in Business
#socialmedialaw
31www.brittontuma.com
Minimizing the Risks ofSocial Media in Business
#socialmedialaw
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
www.brittontuma.com
Minimizing the Risks ofSocial Media in Business
#socialmedialaw
33
MINIMIZING OTHER DIGITAL BUSINESS
RISKS
#socialmedialaw
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
www.brittontuma.com
Minimizing OtherDigital Business Risks
#socialmedialaw
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
www.brittontuma.com
Minimizing OtherDigital Business Risks
#socialmedialaw
36www.brittontuma.com
Minimizing OtherDigital Business Risks
#socialmedialaw
37www.brittontuma.com
Minimizing OtherDigital Business Risks
#socialmedialaw
38
Primary Law for Misuse of Computers
Computers …
Why is the Computer Fraud and Abuse Act important?
www.brittontuma.com
Minimizing OtherDigital Business Risks
#socialmedialaw
39www.brittontuma.com
“Everything has a computer in it nowadays.”
-Steve Jobs
Why Computers?
#socialmedialaw
40www.brittontuma.com
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?
#socialmedialaw
41www.brittontuma.com
What about
What is a computer?
#socialmedialaw
42www.brittontuma.com
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?
#socialmedialaw
43www.brittontuma.com
•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
#socialmedialaw
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 extortionwww.brittontuma.com
Minimizing OtherDigital Business Risks
#socialmedialaw
45www.brittontuma.com
Summary
#socialmedialaw
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!
46www.brittontuma.com
Let’s Talk!
www.brittontuma.com
www.shawnetuma.com
Shawn E. Tumad. 469.635.1335m. 214.726.2808
e. stuma@brittontuma.com@shawnetuma
© 2012#socialmedialaw
Recommended