Social Media: Legal & Regulatory Compliance

Presentation to

June 21, 2012

David M. Adler, Esq.

Background• Social media provides the opportunity for authentic interaction and

engagement• Business is Social: using these services as strategic marketing tools. • New technological developments often create new legal and

business risks. • You will learn:

1. How to identify the legal issues 2. How to develop policies and procedures to avoid legal risks3. How to maintain regulatory compliance.

• DISCLAIMER: I Am Not Your Lawyer. This is NOT Legal Advice

Overview of Legal Risks• Copyright Infringement

• Trademark Infringement

• Right of Publicity

• User-Generated Content

• HR/Employer/Employee Relations

• Fraud• Endorsement & Testimonials

• Emerging Areas• Privacy

• Regulations• CAN SPAM

• FTC “Dot Com” disclosures

• COPPA

• FTC Privacy Report

Legal Risks: Copyright• Copyright protects “original works of creative authorship fixed in a

tangible medium of expression

• What this means: • CONTENT IS PROTECTED BY COPYRIGHT1

• GET PERMISSON FIRST

• Practical Applications• Placing a hyperlink to a photo on a publicly-accessible web site2

• Use of photo from photo-sharing web site3

• Are “Tweets” protected by Copyright?4

Legal Risks: Trademarks• What is a Trademark/Servicemark?

• Any word, name, symbol or device that signifies the source of goods or services

• How Are Trademarks Used in Social Media?• Brand Names

• Social Media Handles “@Midwest”

• Facebook Groups/Pages

• Comparative Advertising

• How Are Trademark Rights Acquired?• Use

• Registration

• State & Federal

• Practical Applications• Is Creating a Facebook Page about your favorite brand infringement?1

• Is Tweeting about a brand infringement?

• Is using a trademark as a social media handle infringement?

Legal Risks: Publicity Rights• What is the Right of Publicity?

• Prevents unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona.

• Largely protected by state law.

• The Restatement Second of Torts recognizes intrusion, appropriation of name or likeness, unreasonable publicity, and false light.

• Practical Applications• Unauthorized Use of One’s Name & Likeness

• Ton LaRusa, manager of the St. Louis Cardinals baseball team sued Twitter, Keith Olberman, CNN recently acquired the rights to CNNbrk (CNN Breaking News), the largest Twitter account on record with 959,011 followers, 'owned' by James Cox, who doesn't even work for CNN.

• The Philadelphia Daily News published comments from Philadelphia Eagles cornerback Asante Samuel's Twitter feed, only to find that his words were being 'tweeted' by an imposter.1

Legal Risks: UGC• What is User Generated Content (“UGC”)?

• Simply put, anything that is uploaded/posted by a “user”• Used in a wide range of applications, including problem processing, news,

gossip and research• question-answer databases (LinkedIn Answers), digital video (YouTube),

blogging (Wordpress), podcasting, forums, review-sites, social networking, mobile phone photography and wikis.

• What Are The Risks?• Social Media is a Conversation. You cannot control what someone else is going to

say about you, your company, your product/service/brand.

• Practical Applications• Unauthorized “fan” page1

• False/Deceptive/Misleading statements

• Misappropriated content: Photos, Videos, Text

• Defamatory/Objectionable language

Legal Risks: HR• Social Media is a business imperative

• The NLRB released 3 Reports, the latest May 30, 2012• An employer violates the Act if a rule “would reasonably tend to chill

employees in the exercise of their Section 7 rights.”• Greater risks to regulated industries: FTC, FDA, FINRA, SEC.

• Practical Applications• No Policy. According to Grant Thornton, as of Nov. 2011, 79% of companies

surveyed did not have social media policies

• Policy Unenforceable. In 2011, the NLRB had received 129 cases involving social media

• Policy Unclear. Training employees is just the beginning; AU telecom co. Telstra (40,000+ employees) mandates training “3Rs” – responsibility, respect and representation

• Policy Outdated. Oct. 2011 FTC settles with Frostwire, developer of p2p file-sharing application over the default privacy settings

• Failure to Engage. Reputation Damage control

Legal Risks: Emerging Areas• Privacy

• More time spent interacting through social networking sites than email

• Mountains of Data previously regarded as private• “Profile page”

• location and background, • real-time updates on moves and mood• groups that reflect the user's interests and views

• Available to "friends” / “friends of friends” / “everyone”

• Investigative GOLDMINE

• Currently, NO Restrictions on Gathering, Using, Sharing or Storing

• White House Privacy Bill of Rights

• Do Not Track

David M. Adler, Esq. & Assoc: Safeguarding Ideas, Relationships & Talent®

Legal Risks: Emerging Areas• Practical Applications

• Mobile/GPS – location data• Stored Communications Act, 18 U.S.C. §2702 challenge to obtaining social

networking data directly from a third party social networking website.• private messages on social networking sites are not readily accessible to the

general public

• “wall postings” and comments are not protected if available to a wider audience.

• CA District Court granted Sony access to personally identifiable information of individuals who visited defendant's website, Twitter account, YouTube video and blog.

• New State Laws• NY bills S6779 A8688 - would ban “anonymous” speech

• AZ bill 2529 – criminalizes any speech that could be construed as cyber-bullying

• WA SB 6251 – criminalizes providing access to third parties' “offensive” materials by online service providers

Legal Risks: Regulations• Axiomatic that advances in technology proceed faster than the law.

• In addition to various federal statutes, Federal Trade Commission has implemented a number of initiatives to “protect consumers.”

• Important Statues• Federal CAN SPAM Act: sets the rules for commercial email (not just SPAM),

establishes requirements for messages, gives recipients the right to have you stop emailing them

• FTC “Dot Com” Disclosures: Guidelines involve disclosing information about relationships with advertisers or endorsers that would have a material impact about how a prospective consumer would view the message.

• COPPA: governs collection of personally identifying information of children aged 13 years or younger; requires parental consent.1

• FTC Privacy Report: December 1, 2010 FTC proposed a new framework for protecting consumer privacy, along with more specific and aggressive guidelines for those in the business of sharing consumer information with third parties.

Summary

• Due Diligence• Is your firm aware of the legal and regulatory issues that

impact social media?• Does your firm take a “best practices” approach to engaging

customers, employees and business partners?• Does your firm have a Social Media Policy that address the

firm’s philosophy and Behavioral, Channel, Contextual and Content Expectations?

• Does your firm monitor social media channels for negative messaging or IP rights violations?

• Does your firm have an action plan for addressing these risks?

Summary

• Action Items• Proper Contractual Provisions• Code of Ethics/Code of Conduct• Social Media Policy• Monitoring

• Google Alerts• Brand names/Trademarks• Social Media Handles• Executives Names

• Facebook/Myspace/LinkedIn Pages

• Updated Privacy Policy

Summary

•Thank You!!!!

•@adlerlaw

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•adlerlaw.wordpress.com