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Making social media work for you: 8 Tips for reducing social media legal risks July 16, 2014 Jay Ward Brown Shaina Jones Ward Washington, DC

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Presentation on theme: "Making social media work for you: 8 Tips for reducing social media legal risks July 16, 2014 Jay Ward Brown Shaina Jones Ward Washington, DC"— Presentation transcript:

1 Making social media work for you: 8 Tips for reducing social media legal risks July 16, 2014 Jay Ward Brown Shaina Jones Ward Washington, DC Sponsored by:

2 8 Tips for Reducing Social Media Legal Risks Jay Ward Brown Washington, D.C. Shaina Jones Ward Washington, D.C.

3 8 Tips for Reducing Social Media Legal Risks 1.Defamation and Section 230 of the CDA 2.Copyright and Trademark 3.Cloud Computing Issues and Security Risks 4.Employees and Disclosure of Confidential Information 5.Control of Social Media Accounts 6.Electronic Discovery and Social Media 7.Marketing on Social Media 8.Contests and Sweepstakes on Social Media

4 1. Defamation and Section 230 of the CDA

5 User Generated Content Section 230 of the federal Communications Decency Act generally provides immunity for hosting third party content online: “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.” 47 U.S.C. § 230(c)(1). “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(d)(3). Section 230 comes into play when a user posts content on another’s website.

6 The CDA Protects You if the Content Is the Work of “Another” The CDA’s protection from suit applies only if the content is posted by “another” Information Content Provider So, if a company or its employees or agents is the “creator or developer” of the content, in whole or even “in part,” then the CDA will NOT protect the company.

7 The CDA does NOT protect website from Intellectual Property claims: Copyright infringement Trademark infringement Misappropriation of the Right of Publicity (in some jurisdictions)

8 Linking and Retweeting Section 230 generally provides immunity for links to and retweets of third party content. This is because the content at issue – the linked website or the original tweet – is “information provided by another information content provider.” HOWEVER: There could be risk if the forwarder appears to have adopted or endorsed the content.

9 2. Copyright and Trademark Online

10 Copyright Basics Protects “original expression” that is “fixed in a tangible medium” –Covers literary, musical, dramatic, pictorial, audio visual and other works –Does NOT protect ideas, facts, systems Provides exclusive bundle of rights to owner

11 Key Concern: The Internet The Internet is not a copyright-free zone! It’s not automatically legal to use materials posted on:

12 Hyperlinks & Copyright Linking generally does not raise copyright concerns unless linking to infringing materials (i.e., contributory copyright infringement) However, consider possible “terms of use” restrictions on deep links Emerging consensus is that “in-line links” or “embeds” similarly are not infringing


14 The Fair Use Defense 17 U.S.C. § 107: Factors a court must consider in determining whether the fair use defense applies: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and, The effect of the use upon the potential market for or value of the copyrighted work.

15 Trademark Basics   Protects identifiers of SOURCE of goods or services – the brand Rationale for trademark law: prevention of consumer confusion

16 Infringement –Use of a mark in a manner likely to cause confusion, deception or mistake as to the source of goods or services –Can include confusion about endorsement or sponsorship Dilution / tarnishment –Use of famous mark in ways that undermine or disparage the mark

17 3. Cloud Computing and Security Risks Online

18 Cloud Basics Environment in which individuals and businesses work with information stored and maintained on shared machines in a web-based setting, rather than physically located in a user’s location. Cloud computing provides an accessible online environment that makes it possible to handle an increased volume of work without impacting hard drive performance.

19 Cloud Computing Risks Malware, viruses, and Internet vulnerability Data privacy, breaches and security of confidential information Record retention requirements Remote access and client privacy Lack of IT support

20 4. Trade Secrets and Confidential Information

21 Social Media Sharing “Ding dong the deal is dead! Turns out I won’t have to work all week…. My vacation is saved!”

22 Social Media Sharing Make sure that employees understand what business information is confidential –Most sharing is inadvertent or the result of an employee not understanding what he or she is doing. Social media policies should be clear so that employees understand their confidentiality obligations. Communicate ways to avoid negative results from “oversharing” on social media, and consider creating training programs.

23 Social Media Sharing How a Facebook post violated a settlement agreement: –"Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT." Read more: facebook-post-nukes-dad-80-000-settlement-deal-article- 1.1709067#ixzz36sq66Wef facebook-post-nukes-dad-80-000-settlement-deal-article- 1.1709067#ixzz36sq66Wef

24 5. Who owns what: control of social media accounts

25 “On duty” Employee Speech When tweeting, blogging, posting, … what employees do ON THE JOB is company’s business – and responsibility.

26 “On duty” Employee Speech Employee tweets, comments, and posts are evidence that are “discoverable” and can be used against the company in a lawsuit.

27 Employee Speech What employees do OFF DUTY may still be company’s responsibility IF it is not clear whether the employee is speaking for the company or only personally

28 Social Media Policy Examples AP: “ Employees must identify themselves as being from AP if they are using the accounts for work in any way.” “Everyone…must be mindful that opinions he or she expresses may damage the AP’s reputation as an unbiased source of news.” Avoid “unadorned retweets.” Cisco: “No anonymous blogging or comments on issues associated with your…job.” “If you comment on any aspect of the company’s business…, you must clearly identify yourself as a Cisco employee…and include a disclaimer that the views are your own and not those of Cisco.”

29 Who owns a social media account? It is in both the employer’s and the employee’s best interest to consider this issue at the beginning of employment – neither party wants to litigate these disputes.

30 6. Electronic discovery of social media information

31 Discoverable Information Text messages Emails Social media postings Can be used as evidence if relevant to the lawsuit, OR subject to production if it might reasonably lead to the discovery of admissible evidence

32 Record Retention If there is a policy, follow it Affirmative obligation to preserve triggered by reasonable anticipation of a legal claim Spoliation –The intentional or negligent withholding, hiding, deleting, or destroying of evidence relevant to a legal proceeding –“Negative inference” –Separate tort –May make a weak claim a strong claim

33 Methods of Preservation Many social media websites offer ability to download information When necessary, hire third-party vendor

34 7. Social media marketing

35 Key Marketing Risk Areas –Use and protection of consumer data (internal privacy policies, and evolving US data privacy standards) –Regulation of channels of marketing communications (i.e., Can-Spam Act)

36 Electronic messages The CAN-SPAM Act of 2003 –Applies to “commercial” electronic messages Subscription offers Solicitations to place display advertisements Any other message the main purpose of which is to induce a commercial transaction

37 Electronic messages The CAN-SPAM Act of 2003 Requires that “commercial” e-mail messages:  Include an “opt-out” mechanism  Identify the sender  Provide “clear and conspicuous” identification that the message is an ad or solicitation

38 Social media and CAN-SPAM Advertising messages sent to individual users through social media sites have to comply with the CAN-SPAM Act. This also would apply to automatic, unsolicited messages sent to social media users telling them about content available on a more traditional site.

39 FTC Guidelines & Endorsements advertising must be truthful; advertisers must have a reasonable basis for claims made in ads; and advertising cannot be unfair or deceptive –advertising examples of success stories must also disclose the results that most consumers can reasonably expect, if the advertised success story is not provably typical. For more information:

40 8. Contests and sweepstakes on social media

41 Sweepstakes and contests Sweepstakes or contests involving: –(1) chance –(2) consideration –(3) prize

42 Sweepstakes Winner determined randomly/by chance Winner determined by skill

43 Legal Sweepstakes Prize Winner determined by chance (i.e., random drawing) Eliminate consideration: Free to enter Where unsure, include “alternate free method of entry”

44 Legal Contest Prize Payment or consideration to enter Eliminate Chance: Winner determined by skill –Photo or essay contest –Properly structured trivia contest (not too hard or easy) Entries must be judged by consistent application of criteria

45 General Tips Rules should be conspicuously posted, easily accessible Must adhere to rules as posted Maintain records of entries Be aware of website’s terms and conditions (e.g. Facebook)

46 Questions?

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