1. 980 9 th Street, Suite 2300 Sacramento, California 95814 Telephone: 916.326.5150 Facsimile: 916.497.0708 300 Montgomery Street, Suite 788 San Francisco, California 94104 Telephone: 415.983.5960 Facsimile: 415.983.5963 Email: info@shawvalenza.com Website: http://shawvalenza.com © 2013 Shaw Valenza LLP. All Rights Reserved. 980 9 th Street, Suite 2300 Sacramento, California 95814 Telephone: 916.326.5150 Facsimile: 916.497.0708 300 Montgomery Street, Suite 788 San Francisco, California 94104 Telephone: 415.983.5960 Facsimile: 415.983.5963 June 12, 2013 UNDERSTANDING THE LAW: FACEBOOK, TWITTER, AND OTHER SOCIAL MEDIA Presented by: Jennifer Brown Shaw, Esq.

2. © 2013 Shaw Valenza LLP. All Rights Reserved. TYPES OF SOCIAL MEDIA  Social media can take many different forms  Blogs  Podcasts  On-line profiles  Wikis  Video  Email  Instant messaging

3. © 2013 Shaw Valenza LLP. All Rights Reserved. TYPES OF SOCIAL MEDIA (CONT.)  Social media applications  Facebook  LinkedIn  Twitter  MySpace  Friendster  Skype  YouTube  Yelp  Flikr  Wikipedia  Second Life  Instagram

4. © 2013 Shaw Valenza LLP. All Rights Reserved. SOCIAL MEDIA STATISTICS Who Uses Social Media?  67% of all adults use at least one form 83% of those age 18-29 years old 77% of those age 30-49 years old 52% of those age 50-64 years old 32% of those age 65 and older  Facebook – over 1.11 billion active users  Twitter – over 200 million active users  LinkedIn – over 225 million active users Pew Research Center Internet project (December 2012)

5. © 2013 Shaw Valenza LLP. All Rights Reserved. EMPLOYER RESPONSE TO SOCIAL MEDIA  39% of employers have a policy addressing social media (work and non-work use)  48% of employers only conduct passive reviews of employee activity on social media sites  42% of employers have disciplined an employee based on social media activities Survey, Health Care Compliance Association and the Society of Corporate Compliance and Ethics (2011)

6. © 2013 Shaw Valenza LLP. All Rights Reserved. WHY SHOULD YOU CARE ABOUT WORK- RELATED SOCIAL MEDIA USE?  Loss of productivity  Confidentiality issues  Violations of EEO and other internal policies  The “workplace” is now anywhere employees “engage” with one another (even in cyber space)

7. © 2013 Shaw Valenza LLP. All Rights Reserved. THE LAW AND SOCIAL MEDIA  Still no “law of social media”  Courts apply traditional common law and statutory principles  Internet policies may set higher standards than the law

8. © 2013 Shaw Valenza LLP. All Rights Reserved. KEY LEGAL ISSUES 1.Freedom of speech 2.Public records laws and document retention 3.Confidentiality (HIPAA, privacy, consent) 4.Employment issues 5.Copyright/intellectual property

9. © 2013 Shaw Valenza LLP. All Rights Reserved. FREEDOM OF SPEECH  Government entities cannot create a public forum and then selectively make content-based decisions about the “speech”  If you opt to open a forum, you cannot remove speech you don’t like if it is on-topic (e.g., unpleasant criticism of an investigation, etc.)  Content restrictions must be clear, objective, prophylactic, and uniformly enforced

10. © 2013 Shaw Valenza LLP. All Rights Reserved. FREEDOM OF SPEECH (CONT.) Four types of fora created by social media use: Information Sharing Only Non-Public Forum (Restricted Access) Limited Public Forum (Restricted Topic(s)) Designated Public Forum Speech Restriction Continuum More Control Less Control

11. © 2013 Shaw Valenza LLP. All Rights Reserved. FREEDOM OF SPEECH (CONT.)  Ensure applicable policies are clear and uniformly applied  Seek advice of legal counsel if you want to push the envelope!

12. © 2013 Shaw Valenza LLP. All Rights Reserved. PUBLIC RECORDS LAWS  In most states, public records rules make nearly all “documents” – including those in electronic form – public records open to inspection  The “New York Times” Rule

13. © 2013 Shaw Valenza LLP. All Rights Reserved. CONFIDENTIALITY (HIPAA, GINA, PRIVACY, CONSENT)  Social media turns everyone into a publisher of content  Easy to violate confidentiality/privacy protections  Adopt appropriate policies to regulate disclosure of confidential information (e.g., health-related information, on-going audits/investigations, etc.)

14. © 2013 Shaw Valenza LLP. All Rights Reserved. EMPLOYMENT  Social media can provide useful information, but be careful!  Consider notice/disclosure when using on-line information  Risks  Harassment/discrimination claims

15. © 2013 Shaw Valenza LLP. All Rights Reserved. EMPLOYMENT (CONT.)  Retaliation claims based on “protected activities”/whistleblower actions  Privacy issues/defamation claims  “Fruit of the poisonous tree” (how you find out matters)  Key Question: Does the conduct violate your lawful policy?

16. © 2013 Shaw Valenza LLP. All Rights Reserved. RESTRICTIONS ON EMPLOYEES’ SOCIAL NETWORKING ACTIVITIES  Consider adopting policies that:  Restrict on-line access during work time  Prohibit inappropriate comments about other employees, auditees, etc.  Protect confidential information  Prohibit “LinkedIn” and other references  Diminish employees’ reasonable expectations of privacy  Be careful with “lawful off-duty conduct”

17. © 2013 Shaw Valenza LLP. All Rights Reserved. THE BOTTOM LINE  The law is changing  Keep up and keep focused!

18. © 2013 Shaw Valenza LLP. All Rights Reserved. QUESTIONS?

19. © 2013 Shaw Valenza LLP. All Rights Reserved. THANK YOU FOR YOUR PARTICIPATION! Follow us on Twitter!Like us on Facebook! Website: http://shawvalenza.com Blog: http://shawvalenza.blogspot.com