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. FlecklawTechcamp 2011

June 18, 2011These slides do not constitute legal advice.

Overview

1. Why do social media policies matter?

2. What should a social media policy address?

Why do social media policies matter?

Social media has changed the speed and controlof marketing.

Why do social media policies matter?

Social media policies can assist in protecting:

Reputation;

Privacy;

Physical security; and

Intellectual property (IP).

Why do social media policies matter?

Reputation

Yours.

Others.

Why do social media policies matter?

Privacy

Hot button issue.

Mainly the privacy of others; can relate toyour organization’s privacy as well.

Relates to your organization’s reputation.

Why do social media policies matter?

Physical security

Relates to privacy.

Both yours and others.

“Digital exhaust” can reveal physical location.

E.g. pleaserobme.com, “Creepy” app

Why do social media policies matter?

Intellectual property (IP)

Yours.

Others.

What are the sources of risk?

User generated risks.

Employee generated risks.

Other sources of risks.

What should a social media policy address?

Generally:

Privacy;

Intellectual property;

Employee’s internal and external use; and

Defamation.

Also: follow the policies of the social medianetwork you are using.

Privacy

Privacy laws (e.g. Personal InformationProtection and Electronic Documents Act(PIPEDA) are breached when a user’spersonal information is collected, used ordisclosed without the appropriate consent.

Best Practices

Written consent is key!

Intellectual Property

Copyright

Right to reproduce content and stop othersfrom reproducing content; permission toreproduce required unless activity falls withinan infringement exception.

Intellectual property

Copyright

Copyright infringement exceptions (“fairdealing”) under specific circumstances:

1. Research/private study.

2. Criticism/review

3. News reporting.

Exceptions do not apply to advertising.

Parody NOT an exception in Canada.

Intellectual property

Copyright - Moral Rights

Moral rights (right of author attribution andintegrity of copyrighted work) can baraltering content.

Moral rights cannot be transferred, but canbe waived.

Intellectual property

Copyright - 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 and moral rights.

Intellectual property

Copyright: Best Practices

Get written permission to use content unlessactivity falls within an infringementexception.

Get a written waiver of moral rights.

Intellectual property

Copyright: Best Practices

If dealing with UGC, obtain:

1. The rights to use/modify the content bywritten transfer of ownership orperpetual, royalty free license with moralrights waiver; and

2. Indemnity against third party copyrightand moral rights violations.

Intellectual property

Trade-marks

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.

Intellectual propertyTrade-marks: Best Practices

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

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

Intellectual propertyTrade-marks: Best Practices

Obtain trade-mark registration(s) for long-term marks as a “sword or shield”mechanism.

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

Employees

Employers may be liable for employee’sstatements if made during scope ofemployment.

Risk can come from employees’ use at andoutside of work.

Beware the overzealously loyal employeemaking a PR crisis 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 yourorganization that could arise from such use.

Employees

Best Practices

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

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

Employees

Best Practices

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.

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.

Defamation What defences are there to a defamation

claim?

1. Truth.

2. Fair comment.

3. Responsible communication.

4. Innocent disseminator.

DefamationBest Practices

If you or your employees don’t have anythingnice to post and it does not fall within theexceptions… don’t post!

Thank you…Questions?

Lorraine M. FleckBarrister & Solicitor | Trade-mark Agent

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

| @lorrainefleck | @HofferAdler

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

Policies

Lorraine M. FlecklawTechcamp 2011

June 18, 2011These slides do not constitute legal advice.