Social Media Internet Law Update Presentation

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7/28/2019 Social Media Internet Law Update Presentation

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Social Media

Internet Law Update

Pennsylvania Bar Institute

April 3, 2013

Jennifer Ellis

Lowenthal & Abrams, PC&

Jennifer Ellis, JDwww.jlellis.net

www.lowabram.com

Today’s Discussion

Businesses Need Social Media

Employment

Practical Matters

Intellectual Property

Advertising

1 billion

1 billion users per month

343 million

100 million4 billion photos

49 million

500 million

1 in 4

200 million

24 million

1 million businesses

Risks and Rewards

Access

Information

Expectation

Negative PR

Bad Information Legal Problems

Employment Considerations

Social Media Policies

Action

Researching Employees and Potential Hires

Social Media Policies

Broad Concerns:

Connect to general computer use policy

Up-to-date job descriptions Make clear who is to use social media on behalf of

the company

Problems with Policies:

NLRB and NLRA NLRB has been inconsistent

Starting to develop some guidance

Don’t be too broad

Watch for protected rights

Acceptable

Prevent Certain Public Rants

Inappropriate comments

No dialogue with other employees

Must not interfere with protected speech

Prevent Use of Company Marks

Protected Marks Not name of company itself

Clearly explain restrictions in policy

Narrow Confidentiality

Clauses Restrict disclosure of trade secrets

Cannot restrict all conversation, such as: Wages Workplace conditions

Employee performance

Company performance

Often seen as protected concerted activity Specifically explain what employer means by

confidential and proprietary Provide examples

Opinions Protected

Employees may engage in discussion of opinions with other employees

Even if factually incorrect

Cannot require absolute accuracy in policy

Enforce Workplace Policies

Entitled to enforce workplace policies

Prevent sexual harassment, malicious activity,violence, etc.

Failure to become involved when appropriate canbe problematic

Absolutes and mandates are a problem for NLRB

Provide examples showing types or behavior, i.e. Examples of harassing, obscene or threatening

language

Watch for Broad

“Courtesy Clauses” Do not try to prohibit all distasteful language

Encourage polite behavior

Do not try to implement wholesale restrictions

Include a Savings Clause

Make clear the policy is not to be construed insuch a way as to violate employees’ rightsunder the NLRA

Not dispositive but can help

Keep policy transparent in intent to follow Act

Cox Communications, Inc., Case

17-CA-087612 (October 19, 2012) Prohibited employees from making

comments about “customers, co-workers,

supervisors, the Company, or Cox vendors orsuppliers in a manner that is vulgar, obscenethreatening, intimidating, harassing, libelousor discriminatory.”

Such “communications are disrespectful andunprofessional and will not be tolerated.”

Cox Policy

Required respect for Intellectual PropertyLaws

No infringement of Cox Logos and BrandNames

Included Savings Clause

Customer called employee “faggot.”

Employee posted on Google+

:"Just because you are having problems with yourTV service does not mean you should call me afaggot! ^%$& YOU!“

Employee terminated

Violated social media policy Language

Policy and Termination

Acceptable Policy did not restrict protected concerted

activity

Clearly meant to stop vulgar, obscene,threatening and other egregious conduct.

Proprietary interest in trademarks alsoacceptable

Posting by employee not concerted

Directed at customer not co-worker

Employee was not seeking collective action

Handling a Problem

Have a plan in place for handling problemsthat arise

Do not react in anger

Investigate nature Directed at customer, individual? Harassing or

threatening?

Directed at co-workers, seeks to initiate groupaction?

Do not discipline for protected concertedactivity

Researching and HiringEmployees

Rewards

Excellent and personalized referral network

Inexpensive and easy research

Good presence attracts potential employees Zero or sloppy presence might cause some to

lose interest in company

Learn items shouldn’t know

Marital Status, Pregnant/Children, Race, Age, etc.

Reliability? The right person?

Made up account?

Good recommendations for bad employee?

Lawsuit issue

Practical Matters

Considerations

Who does the work?

How do you define the responsibilities?

How do you handle negative PR? Any unique risks or concerns to your client?

Improper impact on stock

Health care information Client confidentiality

Intellectual Property

Easy to Steal

Very easy to steal IP online

Users frequently do not believe copyright andother protections exist on the web

Hard to protect in terms of technology

Trademarks & Social Media

Ability to pick own usernames/assign names

No proactive prevention in social media

Retroactive protections in place to complain if trademark is being used

Must police Trademark to protect BUT

Beware the unnecessary take down due to PR

concerns

Consider a polite phone call first

Protect Content and Marks

Have a strong online presence Makes it more difficult for others to get away with

confusing or harmful activities

Use technology Google and Yahoo alerts to search key phrases and

Copyscape – checks for copies of written content

Twilert for Twitter alerts

Enough money – hire services to searchtorrents, YouTube and other services

What Should you Do?

See violation?

Notify provider’s agent

Identify where material appears

Certify ownership

Risk penalties and attorneys fees if wrong

Large social media sites normally have onlineform

Who Owns It?

Unclear law at the moment

Twitter account used by employee whileemployed at PhoneDog

Employee continued to use account

PhoneDog sued for misappropriation of confidential information and trade secrets.

Survived motion to dismiss on trade secrets

Who Owns It?

Employee had LinkedIn account

Account created at behest of company

Used company email address (as required)

Used company template (as required)

Company retained password

Employee terminated

Company changed password Changed Name and Photograph to be new employee

Other items (honors, awards, recommendations)remained

LinkedIn Account Ownership

Employer liable for infringing publicity rights of Employee Key to note, for several weeks when searched

employee’s name, were taken to her replacement

instead Employee’s identity had “commercial value due

to her investment of time and effort indeveloping her reputation.”

Employer had no policy on this matter

No money awarded to Employee, no proof of damages She was pro se

Lesson?

Make it clear who owns what, in writing

Understand the different kinds of sites

Some very individual and hard to move Others easily altered

Advertising

The Basics

FTC regulates advertising

Unfair or deceptive acts or practices in or affectingcommerce

Has released guidelines

http://www.ftc.gov/bcp/guides/guides.shtm

All endorsements and advertisements must

be honest

Testimonials/Reviews

Many sites encourage recommendations ortestimonials

Employees should not write reviews Can violate law

Will violate site rules

If provide product or compensation to

blogger or reviewer, reviewer must reveal

Behavioral Advertising

Target based on data collection Creates profile for users

Provides appropriate ads based on profile

Follow privacy regulations of appropriate statesand countries Provide opt outs

In its infancy, developing area

Starting to combine on and offline behavior

Can be controversial and cause negative PR Be prepared

Example

Search “taking credit cards” on Google

Review appropriate sites

Visit Facebook later See ad

It Works

Facebook has seen substantial increase in adrevenue due to more productive ads

Google ad revenue was flat, has increasedsince introducing behavioral advertising

Affiliates

Affiliate relationships can substantiallyexpand profitability through social media

Make certain social media policies also controlaffiliate behavior

Monitor for contract compliance

Require appropriate credit card security by

affiliates Compliant with PCI Security Standards Council

PCI = Payment Card Industry

Contests & Sweepstakes

Complicated rules and requirements

Unique from state-to-state

Varies based on type

Be cautious

Sweepstakes – No Skill

Required (Click a Button)

Goal – Increase Followers

on Google+

Award – iPad torandom winner

One on each network

Included brandedvideo on nursing home

abuse awareness

Result

Spread of video on nursing home abuse

Engagement of audience on subject

Substantial increase in followers onFacebook, Twitter and Google+

Increase in awareness of law firm’s brand onsocial media

Contest – Requires Skill

(Take a Picture)

AEO Best Shot

Submit picture in American Eagle Outfitter’sclothing

AEO advertised throughout its substantial

network (including social media)

Results

People excited about opportunity to becomepart of AEO campaign and to win giftcertificates

Massive discussion on social media

Picked up by bloggers

Generated buzz

Increased brand awareness

Quickly and widely spread or popularizedespecially by person-to-person electroniccommunication

Can be positive or negative, depending onwhat goes viral

Normally accidental

Example: Old Spice Man

Commercial created for Super bowl in 2009

5 months later, 13 million hits on YouTube

Moved to Twitter "Today could be just like the other 364 days you

log into Twitter, or maybe the Old Spice Manshows up @Old Spice.“

Old Spice Man

Over two days, conducted a social media blitz

Old Spice Man responded to questions andcomments on Twitter

Marketing team created 180 videos inresponse to questions and comments

Celebrities got involved in the exchange

1000 percent follower increase on Twitter

600,000 likes on Facebook

Made younger people interested in Old Spice

Why Did It Work?

Luck – Hit a chord

Luck – Founder of Digg.com got involved He has over 1 million followers on twitter

Responsiveness – took advantage of luck Quick responses on Twitter

Quick responses on YouTube

Told a story, he stayed in character

Videos were short and straight forward

Funny (caught attention)

Engaging

How Not to Handle

Bad Viral PR Comment left on Applebee’s receipt

Applebee’s Receipt

A different waitress posted a copy on Reddit Receipt went viral

Receipt writer angry (name was visible)

Applebee’s fired waitress No policy to provide guidance

Waitress checked employee’s manual before posting

People angry, more attention Defensive response from Applebees Negative, angry comments on Facebook

Kept trying to respond, no response calmed peopledown

Better Response

Clear social media policy Prevent in first place

Simple, non-defensive statement

Allow people to work out their anger Stop responding over and over again

Eventually things calm down. The more

responses, the more ammunition Be prepared ahead of time for negativity

Have a plan

Beware the Streisand Effect

Picture of Barbra Streisand’s house on web

Few people noticed

Sued for removal

Result?

Everybody noticed

Picture still on web

Lesson learned?

Sue cautiously

Make a fuss, cautiously

Dealing with Online Mistakes

Don’t make them (i.e. think first)

Apologize (sincerely)

Lay low

Two Things to Remember

Rules and laws that apply offline apply online

Amount of impact (good or bad) is increasedby the number of potential viewers

Thank You

Jennifer Ellis jennifer@jlellis.net

www.jlellis.net

www.lowabram.com

Social Media Internet Law Update Presentation

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