Social Media Internet Law Update

Pennsylvania Bar Institute April 3, 2013

Jennifer Ellis Lowenthal & Abrams, PC & Jennifer Ellis, JD www.jlellis.net www.lowabram.com

Today’s Discussion
 Businesses Need Social Media  Employment  Practical Matters  Intellectual Property  Advertising

1 in 4 100 million 4 billion photos 1 billion

200 million

343 million 500 million 1 billion users per month

24 million 1 million businesses

49 million

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
 Logos  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 can be 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 in

such a way as to violate employees’ rights under 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 or suppliers in a manner that is vulgar, obscene threatening, intimidating, harassing, libelous or discriminatory.”  Such “communications are disrespectful and unprofessional and will not be tolerated.”

Cox Policy
 Required respect for Intellectual Property

Laws  No infringement of Cox Logos and Brand Names  Included Savings Clause

Facts
 Customer called employee “faggot.”  Employee posted on Google+
 :"Just because you are having problems with your

TV service does not mean you should call me a faggot! ^%$& 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 also acceptable  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 problems

that arise  Do not react in anger  Investigate nature

 Directed at customer, individual? Harassing or

threatening?  Directed at co-workers, seeks to initiate group action?

 Do not discipline for protected concerted

activity

Researching and Hiring Employees

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

Risks
 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 and

other 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

terms  Copyscape – checks for copies of written content  Twilert for Twitter alerts

 Enough money – hire services to search

torrents, 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 online

form

Who Owns It?
 Unclear law at the moment
 Twitter account used by employee while

employed 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 in developing 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 affecting

commerce  Has released guidelines
 http://www.ftc.gov/bcp/guides/guides.shtm

 All endorsements and advertisements must

be honest

Testimonials/Reviews
 Many sites encourage recommendations or

testimonials  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 states and 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 ad

revenue due to more productive ads  Google ad revenue was flat, has increased since introducing behavioral advertising

Affiliates
 Affiliate relationships can substantially

expand profitability through social media
 Make certain social media policies also control

affiliate 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 to

random winner
 One on each network

 Included branded

video on nursing home abuse awareness

Result
 Spread of video on nursing home abuse
 Engagement of audience on subject

 Substantial increase in followers on

Facebook, Twitter and Google+  Increase in awareness of law firm’s brand on social media

Contest – Requires Skill (Take a Picture)

AEO Best Shot
 Submit picture in American Eagle Outfitter’s

clothing
 AEO advertised throughout its substantial

network (including social media)

Results
 People excited about opportunity to become

   

part of AEO campaign and to win gift certificates Massive discussion on social media Picked up by bloggers Generated buzz Increased brand awareness

Viral

Quickly and widely spread or popularized especially by person-to-person electronic communication

Viral
 Can be positive or negative, depending on

what 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 Man shows up @Old Spice.“

Old Spice Man
 Over two days, conducted a social media blitz  Old Spice Man responded to questions and     

comments on Twitter Marketing team created 180 videos in response 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 people

down

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 increased

by the number of potential viewers

Thank You

Jennifer Ellis jennifer@jlellis.net www.jlellis.net www.lowabram.com

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