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.