Corporate Practice Series Portfolio No. 91, Social Media Law, discusses the legal issues that can arise in connection with the use of social media. After initially discussing the dramatic growth in the use of social media and the government agencies that are primarily involved with overseeing this activity, the portfolio analyzes the legal issues involving social media in the employment area, including its use in the hiring process, and in a company's advertising and marketing efforts. The portfolio then discusses legal issues that can arise involving social media in the corporate and securities area, including issues relating to Regulation FD and crowdfunding, and in the litigation area, for example when looking for clients in class action litigation, in service of process, and in obtaining information about potential jurors. Ethical issues that can arise involving the use of social media are analyzed, including issues relating to the formation of an attorney-client relationship, preserving the attorney-client privilege, lawyer advertising through social media, and the unauthorized practice of law. Legal issues involving the privacy of online data are discussed, especially online data in the health care field. Intellectual property issues involving trademarks, copyrights, and branding in the social media area are also discussed. Laws and regulations that apply to the use of social media by minors are discussed, as is the extent to which social media networks can be found liable for the acts of their users and subscribers. Finally, the reasons why a company should have a social media policy are discussed and guidelines for such a policy are provided. The portfolio also includes a number of Practice Tools, including things to consider when drafting a social media policy, a sample social media policy, guidance for companies that want to release or sponsor an app, a sample takedown request under §512(c)(3) of the Digital Millennium Copyright Act, a sample cease and desist notice to an infringing social media user, as well as a sample due diligence checklist, data retention policy, and litigation hold communication concerning social media material. A social media resources list for legal practitioners is also included.
Portfolio No. 91: Social Media Law
I. Introduction A. Overview B. Definition and History of Social Media C. Notable Social Media Outlets D. Statistics E. Value of Using Social Media F. ConclusionII. Agencies With Social Media Oversight A. Overview B. National Labor Relations Board C. Federal Trade Commission D. Securities and Exchange Commission E. Industries With Generally Higher Levels of OversightIII. Labor and Employment A. Hiring Process 1. Employer use of social media in conducting background checks 2. Third party mining of social media data B. Social Media Policies and Discipline Under the National Labor Relations Board (NLRB) 1. Background: NLRB organization and enforcement mechanisms 2. Employee rights under the National Labor Relations Act (NLRA) 3. NLRB scrutiny of employer social media policies a. Employer social media policies may violate §8(a)(1) by restricting protected concerted activity b. Social media policy troubleshooting c. Recommended policy language 4. NLRB scrutiny of discharge or discipline concerning employee social media use a. Employees may use social media to engage in protected concerted activity b. The NLRA only protects “concerted” social media activity c. Employers may lawfully discharge employees for unprotected social media activity d. Employees who engage in protected social media activity may lose the NLRA's protection 5. Surveillance of employee social media activity C. Hostile Work Environment and Discrimination D. Safeguarding Confidential Information E. Copyright and Trademark Infringement by Employees F. Defamation Claims 1. Policies against defamatory remarks on social media 2. When can disparaging remarks on social media be considered private? G. Other Unlawful Conduct on Personal Time, Which Could Be Imputed to the Employer 1. Vicarious liability 2. Some states have enacted broad off-duty conduct laws H. Discipline and Termination 1. In general 2. Wrongful termination and retaliation claims a. Off-duty conduct laws b. Anti-discrimination prohibitions c. Anti-retaliation prohibitions d. Protections afforded to protected concerted activity e. Privacy concerns under the Stored Communications Act and the Federal Wiretap ActIV. Company Advertising and Marketing A. Federal Trade Commission (FTC) 1. Guides concerning endorsements and testimonials in advertising and marketing a. Background b. Covered endorsements c. Material connections—free products for bloggers d. Material connections—employment relationships e. Substantiated claims 2. Updated dot com disclosures 3. Children's Online Privacy Protection Act (COPPA) a. COPPA requirements b. Proposed expansion of the Rule c. Significant enforcement efforts aimed at social media companies B. Confidential Information and Trade Secrets 1. In general 2. Lawsuits against former employees a. Sasqua Group, Inc. v. Courtney b. Eagle v. Morgan c. PhoneDog, LLC v. Kravitz d. Ardis Health, LLC v. Nankivell C. Business Disparagement and Trade Libel in the Social Media Context 1. Introduction a. Business disparagement b. Trade libel under the Lanham Act 2. Businesses face inherent difficulties in bringing business defamation and trade libel claims in the social media context a. Relevant federal statutes are designed to promote the development of the internet, not business interests i. The Communications Decency Act ii. Electronic Communications Privacy Act b. Anonymous postings c. Jurisdictional issues D. Trademarks, Copyrights, and Right to Publicity 1. Trademarks as user names 2. Copyrighted material in social media 3. Unauthorized use of trademarks and copyrighted material in content or icons of social media accounts a. Fair use and other defenses to trademark and copyright claims b. Other trademark and copyright usage 4. Right of publicity 5. Enforcement options E. Property Rights in Social Media Accounts and FollowersV. Corporate and Securities A. Overview of Securities Regulations 1. Regulation FD 2. Regulation G B. The JOBS Act 1. Crowdfunding a. Requirements b. Funding portals c. Implementation of the JOBS Act 2. Threshold for mandatory registration 3. General advertising restrictions lifted under Regulation D a. Rule 506 b. Rule 144A c. The JOBS Act C. Social Media Due Diligence in Mergers and Acquisitions D. The Financial Industry Regulatory Authority (FINRA) 1. Communication categories 2. Approval requirements E. Investment Advisers F. Storage of Corporate Records 1. Federal Rules of Civil Procedure 2. FINRA 3. Investment advisers G. Antitrust Considerations 1. Impact of social media on corporate antitrust compliance policies 2. Social media and discovery in antitrust investigationsVI. Litigation A. Finding Potential Clients Through Social Media for Class Action Litigation 1. General advertisement and solicitation rules 2. Class action advertisement and solicitation practices a. General class action advertisement and solicitation rules b. Class action advertisement and solicitation rules regarding social media B. Service of Legal Process Via Social Media 1. Service via social media in jurisdictions outside the United States 2. Service via social media in the United States C. Discovery and Admissibility of Social Media Content 1. Discovery a. Discoverability b. Discovery methods 2. Admissibility D. Potential Liability for Failure to Preserve Social Media Profile When Litigation Is Anticipated or Initiated 1. Requesting social media discovery 2. Responding to social media discovery requests 3. Preserving relevant social media information E. Immunity From Tort Liability Under the Communications Decency Act (CDA) F. Digital Millennium Copyright Act §512(c) 1. Actual knowledge 2. No financial benefit 3. Designated agent 4. Removal upon notice G. Improper Communications With and Among Jurors Via Social Media 1. Are jurors actually (improperly) using social media? 2. What are courts and litigants doing to prevent jurors' improper social media use? 3. Where do court battles go from here? H. Lawyers' Use of Social Media to Research Jurors 1. Can lawyers view the social media content of prospective jurors? 2. Can lawyers monitor the social media activities of sitting jurors? 3. What are lawyers required to do if they discover improper social media activities by a juror or previously undisclosed information about a juror?VII. Legal Ethics A. Formation of Attorney-Client Relationship B. Preserving Attorney-Client Privilege and Duty of Confidentiality C. Conflicts of Interest 1. Interactions with clients and non-clients 2. Interactions with judges D. Lawyer Advertising Through Social Media 1. Defining “advertisement” is not so easy anymore 2. Old rules and new media 3. Social media knows no bounds—use a disclaimer E. Social Media Increases the Risk of the Unauthorized Practice of LawVIII. Data Use and Retention A. Privacy Issues 1. Using customer preferences and other data a. How consumer data is aggregated b. The patchwork legal standards 2. Tagging a. Introduction b. Tagging and privacy concerns c. Auto-tagging and the European Union d. Auto-tagging and the United States 3. Securing consent for use of employees' and others' likeness 4. Privacy policy issues a. Privacy policy litigation b. FTC and privacy policies c. Privacy policies and California law 5. Health care and HIPAA issues a. Examples b. Breach prevention B. Social Media Estate PlanningIX. Mobile and Internet Apps A. Background B. Trademark, Copyright, and Other Branding Issues 1. Infringement and other issues of misuse pertaining to apps 2. Enforcement options in the app context C. App Billing, Advertising, Privacy, and Security Issues 1. App billing and advertising 2. App privacy and security 3. FTC guidanceX. Minors and Social Media A. In General B. Social Media Use by Minors 1. Alcoholic beverage industry guidelines 2. Consent by minors to use certain networks a. The infancy doctrine in cyberspace b. Parental consent on minors' behalf under the Children's Online Privacy Protection Act (COPPA) C. Social Media and Education 1. Punishment for off-campus use of social media a. Student speech before social media b. Social media and the “substantial disruption” standard i. Off-campus use of social media held to be not protected ii. Off-campus use of social media held to be protected c. Conclusion 2. Private schools and social media policies a. The First Amendment generally does not apply b. Private schools may become state actorsXI. Direct and Secondary Liability of Social Media Networks A. In General B. Copyright Infringement Liability 1. Direct copyright infringement liability 2. Secondary copyright infringement liability 3. Defense: The Digital Millennium Copyright Act C. Direct and Secondary Trademark Infringement Liability D. Other Forms of Direct and Secondary LiabilityXII. Social Media Policies A. Argument for Having a Corporate Social Media Policy B. Other Policies Applied to Social Media Use 1. Human resources or employment policies 2. Corporate codes of conduct C. Checklist for Policy D. Sample Social Media PolicyXIII. Conclusion