an ounce of prevention is worth a pound of cure: key elements for social media policies...

An Ounce of Prevention is Worth a Pound of Cure: Key Elements for Social Media

Policies

Lorraine M. FleckMyCharityConnects 2011

June 7, 2011These slides do not constitute legal advice.

Overview

1. Why do social media policies matter?

2. What should a social media policy address?

3. Can you use social media without being“anti-social”?

Why do social media policies matter?

Social media has changed the speed and controlof marketing…

Speed

Your message can become viral.

“Need for speed” – less time to formulate areasoned and well-considered response.

Your audience can respond instantaneously,self-organize and react quickly.

Why do social media policies matter?

Social media has changed the speed and controlof marketing…

Control

Your audience is often linked to a largenetwork (not necessarily of your choosing).

Your audience may be able to seize controlof/twist your message.

Why do social media policies matter?

Social media has changed the speed and controlof marketing…

Control

Interest groups can use your social mediainfrastructure against your charity and/orbrand.

Why do social media policies matter?

Social media policies can assist in protecting:

Reputation;

Privacy;

Physical security; and

Intellectual property (IP) and proprietaryinformation.

Why do social media policies matter?

Reputation

Yours

Key to developing trust in any organization.

Especially important for charities and non-profits; no trust = no money!

Why do social media policies matter?

Reputation

Others

Social media can be a conduit for defamationand/or depreciating the goodwill associatedwith a brand.

Why do social media policies matter?

Privacy

Hot button issue; relates to your charity’sreputation.

While the Personal Information Protectionand Electronic Documents Act (PIPEDA) oftendoes not apply to non-profits and charities,PIPEDA may apply in specific circumstances.

Why do social media policies matter?

Physical security

Relates to privacy.

Compromised if a person’s physical locationis discovered (e.g. kidnapping, robbery,threats).

“Digital exhaust” can reveal physical location.

E.g. pleaserobme.com, “Creepy” app

pleaserobme.com

Creepy app

Why do social media policies matter?

Intellectual property (IP)

Need to protect your charity or non-profit’sIP and proprietary info.

Significant legal consequences forunauthorized use of other’s IP andproprietary info; reputational damage couldoccur as well.

What are the sources of risk?

User generated risks.

Employee generated risks.

Other sources of risks.

What are the sources of risk?

User generated risks

Feedback from users, solicited by theadvertiser (e.g. post your own video/photosat the request of or on a platform providedby the advertiser).

Content posted by users that violates the IPrights and/or discloses the confidential orpersonal information of others.

What are the sources of risk?

User generated risks

Unexpected user backlash.

Users hijacking your social mediaaccount/site for an unintended purpose.

What are the sources of risk?

Employee generated risks

Employers may be liable for representationsmade in the “scope of employment”.

Statements made on an employee’s personaltime/account may be attributed to employer.

Employees making comments aboutemployer’s products and/or services withoutdisclosing relationship.

What are the sources of risk?

Other risks

Your organization may not exercise fullcontrol over content.

ISP liability: Your organization could be liableif it hosts the online content.

Violating social media network’s terms of usecould result in your charity’s account beingclosed and/or your charity being banned.

What should a social media policy address?

For charities and non-profits, generally:

Privacy;

Intellectual property (IP);

Employee’s internal and external use;

Defamation;

Contests; and

Spam.

Privacy

Privacy laws are breached when a user’spersonal information is collected, used ordisclosed without the appropriate consent.

Why is the personal information beingcollected?

Will that information be only used internallyor visible outside your charity (e.g. on a socialmedia network)?

Privacy

Is there the risk that a user will post someoneelse’s personal information?

Is there adequate security and restrictedaccess to the personal information?

Best Practices

Consent is key!

E.g. do not disclose a donor’s identity withoutexpress written consent.

Intellectual Property

Copyright

Right to reproduce content and stop othersfrom reproducing content.

Applies to the Internet!

Means that you must get others permissionto use their content (e.g. articles, photos,logos) unless your activity falls within anexception to infringement.

Intellectual property

Copyright

Exceptions to copyright infringement (“fairdealing”) under specific circumstances:

1. Research/private study.

2. Criticism/review

3. News reporting.

Exceptions do not apply to advertising.

Intellectual property

Copyright

Parody, while an infringement exception inthe U.S., is currently NOT an exception inCanada; may change.

Intellectual property

Copyright

General copyright term = Life of the author +End of the calendar year in which the authordied + 50 years after the year the authordied.

Usually, person who creates the content isthe owner.

Exceptions: employees, photographers.

Intellectual property

Copyright

Moral rights (right of author attribution andintegrity of copyrighted work) can preventyou from altering content.

Ownership cannot be transferred, but can bewaived.

Intellectual property

Copyright and User Generated Content (UGC)

Because of copyright and moral rights, if youare using UGC, you must obtain the right touse/modify the content.

Risk that UGC may not be truly “usergenerated”, and may violate other’scopyright.

Intellectual property

Copyright

Best Practices

Remember that the same rules offline applyonline.

Remember that U.S. laws may not apply.

Intellectual property

Copyright

Best Practices

Get written permission to use content unlessyour activity falls within an infringementexception.

Moral rights may restrict what you can dowith an image, even if an infringementexception applies.

Intellectual property

Copyright

Best Practices

If dealing with UGC (e.g. in a contest), obtainthe rights to use/modify the content by:

1. Written transfer of ownership with moralrights waiver; OR

2. Perpetual, royalty free license with moralrights waiver.

Intellectual property

Copyright

Best Practices

Ensure that users warrant in term of use thatcontent does not violate copyright, and willindemnify your organization if copyright isviolated.

Intellectual property

Trade-marks

Can be unregistered or registered.

The owner of a registered trade-mark has theexclusive right to use that mark in respect ofspecific goods and/or services.

One cannot “use” a trade-mark in a mannerthat depreciates its value or goodwill (e.g.posting disparaging/defamatory comments).

Intellectual propertyTrade-marks

Depending on the circumstances, displaying atrade-mark in social media may constitute“use”, meaning you could get sued for trade-mark infringement, passing off, ordepreciation of goodwill.

Copyright can also exist in logos. Using logoswithout permission can also be copyrightinfringement.

Intellectual propertyTrade-marks

Best Practices

If you are launching a campaign with newtrade-marks, make sure the trade-marks areavailable to use.

Obtain trade-mark registration(s) for long-term marks.

Intellectual propertyTrade-marks

Best Practices

Ensure that other’s marks are not “used” anddisparaging/defamatory comments are notposted regarding other’s brands.

See if you can register your trade-marks onthe major social media platforms (e.g.Facebook, Twitter, MySpace) to avoidunauthorized accounts.

Employees

Non-profits and charities could be liable foremployee’s statements if made during scopeof employment.

Risk can come from employees use at andoutside of work.

In the event of a PR problem, overzealousemployees trying to help out could end upunintentionally making a bad situation worse.

Employees Disgruntled current or former employees can

defame your organization, causing damage.

Employees may post comments aboutemployer’s products and/or services withoutdisclosing relationship.

Employees may release confidentialinformation without thinking of theconsequences (e.g. Twitpics of visitingcelebrities).

EmployeesBest Practices

Have a social media policy that applies toeveryone – from the mailroom to the CEO.

Have marketing and legal work together todraft the policy – no silos!

Acknowledge that employees may use socialmedia outside of the office, but make themaware of the risks to them and your non-profit/charity that could arise from such use.

Employees

Best Practices

Acknowledge that employees may use socialmedia outside of the office, but make themaware of the risks to them and your non-profit/charity that could arise from such use.

Authorize a limited number of users to poston your organization’s behalf, who cannotrespond to complaints unless authorized.

Employees

Best Practices

Educate authorized users and all employeeson what they can and cannot post.

Have a list of social media user names andpasswords in the event an employee leaves.Restrict access to that list on a “need toknow” basis.

Employees

Best Practices

Use the “mother” rule – if you wouldn’t wantyour mother to see the content – don’t post!

Defamation

What is defamation?

Oral or written words which tend to lower aperson in the estimation of others or cause aperson to be shunned, avoided or exposed tohatred, contempt or ridicule.

Defamation

What is required for a successful defamationclaim?

1. The words are defamatory;

2. The defendant communicated the wordsto third persons (e.g. publication); AND

3. The plaintiff is the one defamed.

Damages can be significant e.g. $125,000damages in Barrick Gold Corp. v. Lopehandia.

Defamation What defences are there to a defamation

claim?

1. Truth.

2. Fair comment: applies only if thestatement is an honestly held expressionof opinion on matters of public interestand has some factual basis.

Defamation What defences are there to a defamation

claim?

3. Responsible communication: statements/allegations in the public interest even ifnot true. Require some diligence to verify.

Defamation4. Innocent disseminator: Merely distribute

content and exercise little, if any, editorialcontrol. Defendant must show that:

Unaware of defamatory statement.

No circumstances which ought to haveresulted in knowledge of defamatorystatement.

Not negligent by remaining ignorant ofdefamation.

Defamation Host will still have some obligations and

potential liability even if insufficientcontrol e.g. Carter v. BC Federation ofFoster Parents, 2006 BCCA.

DefamationBest Practices

If you don’t have anything nice to post…don’t post!

Contests

The same laws that apply offline apply online.

To avoid an illegal lottery – need to removeeither chance or consideration (payment)from the contest. Need a skill testingquestion or no purchase option.

Develop contest rules to protect yourorganization.

Contests

Disclose any material facts that would affectchance of winning in contest rules.

Do not unduly delay distributing prizes.

Contests

Best Practices

Use “mini rules”.

Rules should be readily accessible (nocomplicated website to navigate, purchaseadditional software, or visit additionalwebsite).

Specify who the contest is open to, otherwisecould be open to everyone in the world.

Contests

Best Practices

Specify time zone applicable to any deadlinein the rules.

Anticipate children entering your contest.Have a parent/guardian click an “I Agree”button on the entry form to consent to thecontest rules on child’s behalf.

Contests

Best Practices

Anticipate computer glitches: contest rulesallow for cancellation/contest modification.

Privacy and disclosure of winner’s personalinfo.

Contests

Best Practices

Anticipate children entering your contest.Have a parent/guardian click an “I Agree”button on the entry form to consent to thecontest rules on child’s behalf.

Assign copyright and waive moral rights inUGC via “I Agree” button.

Contests

Best Practices

Have rules prohibit unauthorized third partyIP use in UGC (e.g. music, photos, logos).

If you receive an unauthorized IP usecomplaint, immediately remove offendingcontent.

Contests

Best Practices

If you are offering a contest via a social mediaplatform, check to see if they have rulesregulating such contests (e.g. Facebook,YouTube, Twitter).

Spam

New Fighting Internet and Wireless Spam Act(FISA) may apply to messages sent over socialmedia networks such as Facebook andTwitter.

Under FISA, “commercial electronicmessages” must identify the sender andprovide contact information, as well asprovide an unsubscribe mechanism.

Spam

“Commercial electronic messages” captureactivity that may be performed withoutexpectation of profit.

Significant penalties: Fine up to $1 million foran individual; up to $10 million forcorporations.

Spam

Best Practices

Meet the requirements for express or impliedconsent.

Spam

Best Practices

Express consent

1. Provide the purpose for which consent issought.

2. Identify the person seeking the consent,and if different, the person on whosebehalf consent is sought.

3. Provide any other prescribed info.

Spam

Best Practices

Implied consent

1. Existing business/ non-businessrelationship between sender and recipient,or

2. Recipient has conspicuously publishedtheir address, or has disclosed it to thesender and…

SpamBest Practices

Implied consent

2. Recipient has conspicuously publishedtheir address, or has disclosed it to thesender and…

i. Has not indicated that they do not wishto receive commercial messages, and

ii. Message is relevant to recipient’sbusiness.

Is it possible to use social media without being “anti-social”?

YES!

But need to have in place to limit liability andmitigate risk.

Two pronged approach:

1. Legal measures

2. Non-legal measures.

Using social media without being anti-social

Legal measures

Comprehensive social media policy andterms of use (TOU) if operating your ownnetwork.

Specify permitted users and uses.

Clearly prohibit the posting of problematiccontent, such as personal information (e.g.donor’s identity), content that violates IP,defamatory content, other confidential info.

Using social media without being anti-social

Legal measures

Comprehensive social media policy and TOU.

Consent for collection/use of personalinformation and other privacy issues.

Use measures to ensure that user agrees to TOUto ensure enforceability (e.g. click-wrapagreements).

Using social media without being anti-social

Legal measures

Comprehensive social media policy and TOU.

Obtain copyright assignments/licenses plusmoral rights waiver for UGC.

Avoid disclosing physical location except whereunavoidable.

Using social media without being anti-social

Legal measures

Using an existing social media platform?

Comply with social media platform’s TOU.

Using social media without being anti-social

Non-legal measures

Fall into two categories: technical andadministrative.

Using social media without being anti-social

Non-legal measures

1. Technical

Verify user identity.

Control access to the social media network(where possible).

Control access to user’s personal information.

Content filters.

Using social media without being anti-social

Non-legal measures

2. Administrative

Respond to complaints about content.

Respond to users posting problematic content.

Monitor the site

May lead to increased liability (law unclear).

But if do not monitor, could hurt your charity’s imageand brand. Uncertain whether lack of monitoringavoids liability.

Thank you…Questions?

Lorraine M. FleckBarrister & Solicitor | Trade-mark Agent

E-mail | lfleck@hofferadler.comWebsite | www.hofferadler.comBlog | www.ipaddressblog.com

| @lorrainefleck

An Ounce of Prevention is Worth a Pound of Cure: Key Elements for Social Media

PoliciesLorraine M. Fleck

MyCharityConnects 2011June 7, 2011

These slides do not constitute legal advice.