Prince Lobel and the Law of Social Media

Prince
Lobel has considerable experience addressing legal issues arising from the
use of social media by businesses and individuals.  We help companies
engaging in social media to identify and minimize legal risks, as well as
to formulate plain-language policies.  We focus on providing preventative
counseling and training. 

Because
of the breadth of our attorneys’ experience, we are able to offer detailed
advice about the ramifications of social media use for employment relations and
discipline
, for publishing
liability
, and for regulatory enforcement
We partner with our clients to develop best practices tailored to each
company’s particular business, marketing, and communications needs.

Social
Media Strategy

  • Help companies
    develop a social media strategy appropriate to their business model,
    product or service, customer relationships, and workplace culture.
  • Identifying each company’s particular
    social media goals (e.g., branding, generating sales, information-sharing,
    recruiting, team-building, competitive presence, client development, data
    generation, etc.)
  • Consider desired role of employees (rank
    and file? management?) in achieving those goals.
  • Construct procedural guidelines for
    social media posts
  • Intake and response guidelines for
    customer complaints on site
  • Determine company’s level of copyright
    ownership for posts
  • Determine and draft company’s social
    media policies, site guidelines, terms of service, and privacy policy

Employment
Issues

  • Avoiding contractual effect of
    recruiting sites
  • Use of social media for pre-employment
    screening; FCRA obligations
    •  Discrimination
      and retaliation claims
  • Policy on friending of supervisors and
    subordinates; of customers/clients
  • Social media monitoring of employees or
    ex-employees
  • Company liability for employees’ posts
    and tweets when made within scope of employment.
  • Policy re job-related and
    non-job-related posts by employees
  • Company authority to restrict employees’
    non-workplace speech
  • Wage and hour issues
  • Permissible discipline for employee
    speech
  • Red flag areas: wages, work conditions,
    concerted activity

Privacy
Issues

  • Revise company policies, handbooks, etc.
    to disclaim employees’ expectation of privacy
  • Requirements of Stored Communication Act
  • Safeguards to protect trade secrets and
    other confidential information
  • Impact on non-disclosure agreements and
    duty of loyalty
  • Legal restraints on information
    collected.
  • Best practices re limits on employee
    speech
  • Discrimination and harassment issues
  • Use of metadata
  • Use of geo-location information

Publishing
and Content Issues

  • Train communicators to be able to
    identify and avoid high-risk communications
    • Defamation
    • Invasion of
      privacy (private facts)
    • Copyright
      infringement and company’s vicarious liability
    • Subpoenas for
      information
    • Sites geared to
      children
  • Develop and disseminate propriety
    guidelines
  • Conduct pre-publication and
    pre-broadcast review
  • Use of "flagging"
  • Advice re non-liability for third-party
    posts under 47 U.S.C. 230 (CDA)
    • Procedures and
      standards for takedown of third-party posts
  • Consult re advisability of disclaimers
    (industry-specific)
  • Register sites for compliance with
    Digital Millennium Copyright Act (DMCA)
    • Advise
      companies re copyright takedown obligations and deadlines
  • Advise clients re hybrid insurance
    policies to cover social media torts

Regulatory
and Compliance Issues

  • Guidelines regarding comparative
    advertising
  • Legal review of sweepstakes and contests
    for compliance with state and federal laws
  • Compliance with FTC’s rules for
    endorsements and testimonials
    • Identify
      company- and industry-specific risks
  • FTC "material connection"
    disclosures
  • Protocols for avoiding false or
    misleading speech / consumer deception
  • Lanham Act requirements
  • Word-of-mouth marketing ethics code
    (WOMMA)
  • Children’s Advertising strictures under
    CARU
  • FINRA notice (Jan. 25, 2010)
  • Adherence to terms of use of specific
    social media purveyors (Facebook, Twitter, Linked-In, YouTube, etc.)
  • Behavioral advertising guidelines (IAB
    July 2009 principles)
  • CLEAR Ad Notice Technical Specifications
  • Adherence to IAB Principles
    (Transparency, Consumer Control, Data Security, Material Changes,
    Sensitive Data, Accessibility)
  • Limits on data collection and use
  • Data security guidelines

Other
Litigation Avoidance Issues

  • Protocols for responding to complaints
  • Quick-response mechanism

In
addition to advising companies in the adoption, maintenance, administration,
and enforcement of social media guidelines, our attorneys frequently
conduct presentations on social media issues and practices for managers,
marketing representatives, human resources staff, and rank-and-file
employees.