Social Media Law: Who should be drafting your State's laws, (or your Company's policy)?

As social media begins to enter its adolescence it is not surprising that we are beginning to see legislation specifically directed at interaction on social media, the platforms themselves, and their rapidly expanding use in many varying areas of our life. One of those laws which has engendered a wide range of debate is Missouri Senate Bill No. 54 which was unanimously approved by the Senate on April 7, and recently signed into law by Governor Nixon. The legislation will go into effect August 28.  

I've deliberately held off writing about Missouri's new law until now because I was curious to see what the initial reaction would be. Not unexpectedly (although I expect some in the Missouri legislature did not foresee this amount of uproar over what they thought was a child protection bill) this law has proven to be controversial. While I have not spoken to the bill's author, Sen. Jane Cunningham, I have little doubt that her efforts in passing the "Amy Hestir Studen Protection Act" were well meaning. Sen. Cunningham's website touts that she has "fought for this legislation for our children for five years" and that "this legislation is vital to protect our children from sexual predators in our schools" While one could debate whether the law actually serves to accomplish its stated goal(over 75% of child abuse actually occurs at home, not by educators)(2009 Childwelfare Public Fact Sheet ), or whether it potentially stifles the learning environment, I believe Sen. Cunningham's well meaning attempt to protect children may provide a glimpse of the challenges that the future regulation of social media will face.

Initially, it should be stated that the legislative process (and the court system for that matter) is somewhat ill-equipped to handle the rapidly changing world of social media. As Sen. Cunningham's statement indicates, she had been working on this legislation for over five years. At that time, Facebook had been open to the general public for less than a year and Twitter had only recently launched. When she initially envisioned the legislation, Sen. Cunningham could not have hoped to foresee the cultural impact that these services would have.  Laws that attempt to address social media should keep this reality in mind.
In considering the ramifications of Missouri's law, it is helpful to consider the bill itself.  The applicable text of Senate Bill 54 is relatively short and reads as follows:

1. Every school district shall, by January 1, 2012, promulgate a written policy concerning teacher-student communication and employee-student communication.  Such policy shall contain at least the following elements:

(1) Appropriate oral and nonverbal personal communication, which may be combined with or included in any policy on sexual harassment; and 
(2) Appropriate use of electronic media such as text messaging and internet sites for both instructional and personal purposes, with an element concerning use of social networking sites no less stringent than the provisions of subsections 2, 3, and 4 of this section.
 

2. As used in this section, the following terms shall mean:

(1) "Exclusive access", the information on the website is available only to the owner (teacher) and user (student) by mutual explicit consent and where third parties have no access to the information on the website absent an explicit consent agreement with the owner (teacher);

(2) "Former student", any person who was at one time a student at the school at which the teacher is employed and who is eighteen years of age or less and who has not graduated;

(3) "Nonwork-related internet site", any internet website or web page used by a teacher primarily for personal purposes and not for educational purposes;

(4) "Work-related internet site", any internet website or web pages used by a teacher for educational purposes.

 3. No teacher shall establish, maintain, or use a work-related internet site unless such site is available to school administrators and the child's legal custodian, physical custodian, or legal guardian.

4. No teacher shall establish, maintain, or use a nonwork-related internet site which allows exclusive access with a current or former student. Nothing in this subsection shall be construed as prohibiting a teacher from establishing a nonwork related internet site, provided the site is used in accordance with this section.

5. Every school district shall, by July 1, 2012, include in its teacher and employee training, a component that provides up-to-date and reliable information on identifying signs of sexual abuse in children and danger signals of potentially abusive relationships between children and adults. The training shall emphasize the importance of mandatory reporting of abuse under section 210.115 including the obligation of mandated reporters to report suspected abuse by other mandated reporters, and how to establish an atmosphere of trust so that students feel their school has concerned adults with whom they feel comfortable discussing matters related to abuse.

RSMo 162.069

While I commend Sen. Cunningham for the bill's recognition that social media policies are an integral part of any organization's social media efforts, I believe that the law should serve as a warning to those of us who practice in the social medial sphere (and also to those who seek to write laws related to social media in the future) that many of our current legislators are not be experienced in social media and may not realize the ultimate ramifications of the laws they propose. 

Social media, chat rooms, blogs, and instant messaging are no longer the realm of tech aficionados and teenagers. These channels now provide a means for efficient, and often enhanced, communication to a broad array of individuals and industries.  From the mass communicative capabilities of Twitter to the relatively focused "circles" available at Google+, social media has the potential to provide heretofore unknown educational and commercial opportunities.  Laws that ban and/or strictly limit the use of social media serve to stifle those opportunities. 

While defenders of this law have stated that its intent is not to prohibit the use of Facebook by educators, its seemingly broad, and under defined terms will likely serve to have that effect.  By proclaiming that no teacher shall use an internet site unless such sight is available to school administrators and legal guardians, and that no teacher shall use a nonwork related site which allows exclusive access with a student, by its express terms, the law appears to foreclose many social media applications.  Almost all sites "allow" exclusive communications, whether by direct message, chat, or other means.  Without further clarification, the law as currently written, will likely deter many educators from taking advantage of social media's potentially enormous educational value.

Those who regularly participate in social media understand the benefits that it can provide, some of which we are only now beginning to appreciate. Companies are using social media to interact with their customers through forms of direct marketing and advertising which was previously impossible.  Educators (when not stifled by overly restrictive laws) are forming collaborative groups both with other teachers and also with students which allow all to interact in real time in on-line after-class discussions.  Customers are able to provide direct feedback, and receive personalized responses.  Students have (or had) the opportunity to ask that question (that they were afraid to ask in class) through a medium in which they were more comfortable.  When drafting laws, or social media policies, the vast potential of social media should be considered just as thoroughly as any potential pitfalls.  

Because these areas are rapidly changing, and because legislators, or those drafting policies for your organization, may not be as familiar with social media, it is vitally important to engage those fluent in the medium when drafting rules that will effect social media.  Include members of your marketing, advertising, and public relations staff in your discussions, and be sure to seek out members of your organization that are active, both personally and professionally, on social media.  These are the people who will understand the actual ramifications of the policies that your are proposing and may also be able to provide you with more efficient and effective means to accomplish your goals without stifling social media's benefits.  If the people who are writing your policies, (or your State's legislation) aren't actively engaged in social media, they may not see the potential benefits that overly restrictive policies can preclude.

Let me know what you think.
Craig Moore

So you have a social media policy....Now what?

So your company has a Facebook page, Twitter feed, and even a YouTube channel...your employees, (and customers) are using social media and you recognize that it has important long term implications to your business. Hoping to stay ahead of the curve and avoid problems that you might not even know exist, you decide that you need a social media policy.  In drafting your policy, you work with counsel to draft a tailored policy that addresses your company's specific market, sales force, and culture.  In short, you've done everything you're supposed to do and you think you are ahead of the game in protecting your company.

Now what?

Unfortunately, simply having a well crafted social media policy does not solve all your potential social media problems.  In fact, while you've made a good start, you are really just half way there. Without training, even the best crafted and perfectly tailored social media policy will not be as effective as it could be.  Much like a bike that you never learn to ride, even the best policy will not protect you if it is not implemented effectively.

In implementing and training upon your social media policy there are many different aspects to consider.

Initially, it can be helpful to provide some very basic use and privacy setting training, not only for your staff that will be using social media on your behalf, but for your entire company.  Often instances of inappropriate, embarrassing, or actionable social media mishaps occur when people accidentally post something in the wrong area or send a message to the wrong person, or inadvertently share a post with the world which is meant only for a select few.  Making sure that your employees are trained and understand the basic privacy settings of social media sites, and also that they understand how their posts can and will be viewed by others (both their social media friends, and the public at large) is a great first step in protecting your people, and your business.

Next, it may also be helpful to provide specialized training to different segments of your work force.  While it may not be necessary to make sure that all of your support staff or manufacturing lines are versed in the latest aspects of FTC communication guidelines, you may want to make sure that your marketing, sales, and social media team know how traditional advertising, marketing, and sales laws are being applied to social media and what the pitfalls are that may be particularly applicable to your industry.  Similarly, while upper management may or may not need to be reminded not to post things which could place the company in an unflattering light, they may need to be reminded how even seemingly innocent statements (e.g. "Earnings are coming out this week and we're all so excited") could implicate SEC rules or how statements to or communications with competitors could raise suspicion in certain circumstances (e.g. antitrust or unfair trade practices).  It is good to remember that everyone at your company, from the night janitor to the C.E.O., has the potential to be a representative of your company via social media...its always best to train accordingly.

Finally, another important aspect of social media training that is often overlooked is reminding employees how policies or agreements already in place can be effected by social media. Agreements relating to non-compete and non-solicit provisions of employment agreements are often potentially implicated by an employee's use of social media, both while employed at your company and after separation.  If you have properly trained your employees on your expectations and their responsibilities under the policy, not only will you hopefully avoid inadvertent missteps, but you may also provide yourself with valuable ammunition if faced with a former employee who is feigning ignorance of the implications of the technology in a court battle.  If you can establish that former employees were trained on what would violate these agreements before such a violation ever occurs, it may prove invaluable.  Similarly, efforts to ensure that trade secret and confidential customer information remains protected by providing your employees the means to understand how to do so on social media serve not only to protect you now, but also if that information ever comes into question in the future. 

While these general suggestions cannot hope to detail every potentially necessary or advisable aspect of social media training for your company, I do hope they provide a window into the areas where you can start.

Let me know what you think.


(TWISML PS:  Happy Father's day to all the Dads out there this weekend, and a special personal thank you to my Dad, Frank Moore.  After having three children of my own I know that there can be no greater gift to a father than to see his kids happy...Dad, I just wanted to let you know that I am, and that I couldn't have asked for a better Dad.  Happy Father's Day.)

Does your social media campaign expose you to liablity?

Over the past  few years there has been no bigger area of growth for the marketing industry than the realm of  social media. Facebook, Twitter, and Linkedin have exploded from what was virtually a non-existent market just a few short years ago, into a significant portion of many advertising campaigns.  Indeed, over two billion dollars were spent advertising on line last year and it is predicted that this will quadruple to over 8 billion by 2015. (Media Life: Behind the Huge Growth of Social Media).  This explosive growth has not gone unnoticed by businesses and thousands have rushed to join the social media world.  From Fortune 50 companies, to small family run shops, business of all shapes and sizes are adopting social media as an effective means to reach their target customer.

While this social media explosion has provided an amazing opportunity for customer connection and engagement, there are legal issues that must be considered.  Although Facebook accounts are officially available to only those over the age of 12, studies indicate that the use among pre-teens reaches into the millions. (Consumer Reports estimates approximately 7.5 million children under age 13 use facebook).  This use by minors may have the potential to expose unwary businesses to some very unexpected liability. 

When users sign up for Facebook, their profile displays personally identifying information including their name, photo, school, employer, birthday, hometown and relationship status. Users are also able to further  customize their profile by including specific references to personal likes and dislikes such as movies, books, music and other areas of interest.  This information provides Facebook a unique ability to offer advertisers a chance to direct their advertisements to a very specific demographic, but when the information relates to minors, it may also present potential problems.

Just last week, a unique issue arose in the United States District Court for the Eastern District of New York which should have Facebook, and all businesses with a presence in social media, reviewing their programs and policies.  On May 3, 2011, Scott Nastro, on behalf of his child, J.N., brought a class action suit against Facebook in a matter styled Nastro v. Facebook, Inc., 11-cv-2128, (E.D. N.Y).  In this action, plaintiffs allege that Facebook misappropriated the names and likenesses of children for promotional purposes without seeking the required consent from the child's parent or guardian.

Specifically, plaintiffs alleged that Facebook, through its "Social Ads" feature, misappropriates the name and likeness of minors, for commercial advantage, without the consent of the minors parents. Started in 2007, Social Ads is an innovative program which essentially provides Facebook the ability to use an individual Facebook users preferences as an endorsement.  Through Social Ads, Facebook users are allowed to see which of their friends has "endorsed" a particular brand or product by displaying the names and likenesses of a user's Facebook friends who have interacted with the ad or the advertiser's brand page.  Thus, when a user "likes" a Facebook page, the user's action is recorded on the page along with the users name and likeness. Similarly, when a user "likes" a brand or responds to an event, a message is displayed to their Facebook Friend's home page feed, announcing this action.  Because Facebook does not provide an "opt out" to allow a user to prevent their name and likeness from appearing on a page they have liked, users are automatically "endorsers" of any page they like on Facebook.  The plaintiffs' suit seeks to recover for these "endorements" by minors which occur without the necessary consent of their parents. While obviously of concern to Facebook, Inc., this proposed class action, could also have major national implications.

Many corporations with Facebook fan pages include areas for their fans to submit many different types of content.  This suit is a reminder that even innocently constructed programs likely need review from counsel.  From the submission of photos and videos, to the simple ability to add a users name and likness to a list of those "liking" a page, social media's ability to allow users to engage with a company's page may have consequenses that were unheard of just a few years ago.  While your markeing department or agency can construct amazing campaigns through social media, make sure they are vetted for potential pitfalls such as those faced by Facebook in Nastro.   

Let me know what you think.