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.)

Just because its "ok", doesn't make it legal.

In reviewing the social media legal headlines over the past few weeks (sorry for the week long hiatus, my oldest son is "graduating" from kindergarten and end of year festivities have been never ending...I'll try hard to meet my weekly deadline but things like that will always take precedence) I am reminded of an old maxim of my Grandmother's: "Just because its legal, doesn't make it right." 

While this was not one of her favorites (those were usually reserved for things that were "colder than..." "battier than..." or "crookeder than...") it was one that I, as an aspiring attorney, tended to hear quite often.  This rang true even more so once I entered law school and would attempt to explain to her the differences between what you "knew" and what you "could prove." What you "could prove" never mattered much to Grandma, she was always concerned more with what "was right."  Interestingly, my experience with the jury system has born out that her idea of what was "right" was much closer to what a jury is concerned with than what my law school professors had to say about what you could prove...but that's a different blog.

Earlier this month, Facebook updated its promotional guidelines (Facebook Promotional Guidelines) to remove its blanket prohibitions on promotions for tobacco, dairy, gambling, firearms, prescription drugs, and gasoline. In addition, marketers may also now require purchase for entry and target those below age 18 or that live in previously restricted countries. 

These changes have obvious implications for those brands that were previously prohibited from promoting their products via the world's largest social network, and likely has my friends in the marketing industry salivating over the opportunity to expand their client's influence and engagement in this arena.  However, to paraphrase Grandma..."Just because its alright with Facebook, doesn't make it legal."

Companies and brand managers, as well as marketing and advertising professionals, should remember that the availability of this new arena does not necessarily make sweepstakes and promotions for these (or any other type of products) necessarily "legal" just because Facebook doesn't prohibit them.  Instead, what these changes mean is that Facebook will no longer attempt to be the arbiter of these issues.  While these promotions may now be "alright" with Facebook, companies hoping to take advantage of this new opportunity must remember that Facebook's members are worldwide, and the catchy promotion, or amazing sweepstakes that you are rolling out may not be as acceptable under the laws of certain jurisdictions. 

While your gaming, tobacco, or firearm promotion may be perfectly acceptable, and completely compliant under the laws of Missouri (or whichever jurisdiction you reside) it may not be under the laws of Utah, California, Saudi Arabia, or China.  Depending upon where your target market resides, and the size of your national or international operations, the laws of these jurisdictions must also be considered if you hope to avoid potential legal issues.  (Additionally, this is yet another reminder how easily international legal issues can arise through the use of social media....while you may have never considered doing business in the UAE or the Ukraine, social media has the potential to take your company just one click away from these jurisdictions....it is important to consider the ramifications).

The implications of these changes reiterate the importance of coordinating your marketing and legal departments.  While marketing may (rightfully) be seeking to expand your business into social media in an attempt to take advantage of the unique opportunities that the medium provides, and legal may (also rightfully) be concerned about the relatively unplowed social media landscape, these departments can co-exist.  Having your legal and marketing teams on the same page, with each group understanding the benefits, and concerns that each of them see in social media is vital to your success in this rapidly growing arena.  If you haven't yet, its time to make sure that they are all on the same page.

Let me know what you think.  

P.S.  I want to take a second and send thoughts and prayers out to my friends in the Joplin, Missouri area.  The storms that have devastated that region are simply indescribable and nothing that anyone can say can really do anything to take away the devastation.  Be safe, and know that we are with you.

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.

Can non-traditional "influencers" legally affect your clients?

Last week I had the opportunity to attend an interesting event presented by @infuz and @stltweets entitled:
The State of Online Influence: Social Reach in St. Louis. 

The stated intent of the event was to "put a magnifying glass" on the concept of influence by exploring its roots and the challenges of harnessing it.  The event featured presentations and discussions by local Social Media influencers Matt Ridings (@techguerilla), Mayor Francis Slay (@MayorSlay), Jason Fiehler (@jasonfiehler), Brad Hogenmiller (@Javastl), Robert Littal (@BlkSportsOnline), Chris Reimer (@RizzoTees); and Todd Jordan (@Tojosan) and centered upon how Social Media is presenting a unique opportunity for new voices to be heard, and also allowing those in business and politics to have a better, more direct, and more timely mode of communication with their clients and constituents.  The climax of the evening was the unveiling of STL Index (@stlindex), which is being billed as a data-centric approach to measuring online influence in St. Louis.

While in many respects the event could be considered a marketing driven "coming out party" for STL Index, there were a couple legal take aways that I thought worth noting. 

First, at the end of the day, social media, social marketing, and social networking is still at its heart, networking.  Though the presentations were outstanding, the speakers well informed, and the panelists (and audience via twitter posts projected on the screen) entertaining, what made the event successful was the ability for the attendees to meet in person, engage, and converse about their shared interest in social media. While many, if not most, of this crowd had "met" online, via Twitter, Facebook, or one of the dozens of other Social Media sights which each of them frequent, those relationships were expanded and solidified by taking their online communications offline and in person. 

Businesses venturing into social media can learn from this.  It is simply no longer "enough" to have a Facebook page, or tweet your press releases.  The real secret of social media is engagement.  If you are not willing to take that step, you won't get as much out of the medium as you should.  While my marketing roots believes this wholeheartedly, my legal side understands that this does introduce some challenges and potential risks.  When your company, employees, and customers actively engage in social media, you almost inherently lose some control over your brand and message.  This lack of control is often sufficiently offset by the tremendous benefits that social media can provide to ensure that you want to be in the space, but there is no reason that you shouldn't take every step you can to also protect your business.  Social Media Policies specifically tailored to your company; Training all employees on the proper uses of Social Media and how improper uses can have adverse personal and professional consequences; and coordination between human resources, marketing, and legal to ensure that all are on the same page and working together to make sure your business is protected are just some of the ways to help protect your organization. 

Second, for those in the business community, what may be of particular interest, (and some concern) is that these new "influencers" are not necessarily those who we have traditionally considered to be influential.  Indeed, out of the STL Top 100 list, I think it is fair to say that there are many more bloggers and marketing types than there are politicians and CEOs.  Many of the people you find on this list are more likely to be in your HR department, or a member of your team who bloggs on a topic completely unrelated to your business.  Despite these nontraditional roles, these influencers have committed followings, and reach an enormous number of people, however, they are not necessarily traditional spokespeople and that may need to be addressed.  Businesses hoping to utilize social media should be aware of this, and ideally, should try to tap their own internal influencers in helping with their social media strategy.  Again, this requires thought, and developing policies which address these ever changing areas.

For those practicing in the social media law sphere, keep these non-traditional influencers in mind when developing policies and assisting your clients.  While they may have an enormous potential to help your clients' business, they may not be versed in important areas of the law, and that could have consequences.  Make sure your clients don't get caught up in avoidable problems.

Finally, I'd like to give a shout out today to our military leaders, special operations forces, and our President.  Job well done.

Let me know what you think.

Social Media Posts: What do you do with a "bad" post?

Businesses that are considering using social media often spend an inordinate amount of time worrying about what can go wrong.  From the disgruntled customer, to the misguided employee, to the inarticulate spokesperson, there are indeed many things that can go "wrong" when using social media, however, the mere possibility that something could go wrong does not mean your company should go running for the exits. 

In truth, things can go "wrong" in almost any area of your business and the mere fact that it occurs on social media has little to do with the media itself.  When an employee goes AWOL and posts inappropriate or unflattering content, it has been said that "you don't have a social media problem, you have a hiring problem." Similarly, staying off of social media due to concerns that a customer may say something unflattering is really akin to stating that your business is unwilling to address complaints.  (Thanks to Amber Naslund and Jay Baer authors of The Now Revolution, and a TWISML Hat tip preview). In reality, these issues are human resource and customer service problems which every business must address in one form or another.  Social media just serves to magnify the problems.

An interesting area where these issues find an interplay with the law is what you do with "bad" posts once they are out there.  While at first, it may seem reflexive to delete the post (if you are able), in many instances it might not be that simple.

A recent tragic case arising out of a dorm room incident at Rutgers University has brought about some potentially significant developments in this area of social media law.  The case out of Rutgers arose when Dharun Ravi allegedly videoed his roommate Tyler Clementi's relationship with another student via webcam and distributed a link to that webcam via social media.  After Clementi learned that his relationship had been broadcast he tragically took his own life.  Charges were initially brought against Mr. Ravi alleging counts related to invasion of privacy.  While these facts are tragic, what is particularly interesting when considering the application to social media law is that Ravi was also recently charged with tampering with evidence.  (For a more detailed account of the incident, see article by Beth DeFalco  of the AP Roommate charged with hate crime in N.J. Suicide).

While on its face, this case may seem unrelated to a business' use of social media, the tampering with evidence charges may provide a window into future developments.  As with the evidence in this criminal case, a business that knows civil litigation is likely to arise has a duty to refrain from destroying relevant evidence. While, initially, it may seem perfectly reasonable for a business to delete offensive posts, or remove client complaints, this duty to preserve evidence makes it advisable to consider whether the post potentially relates to a larger legal issue.

Although these evidentiary considerations present potential problems, they do not mean that troublesome posts must be left up indefinitely.  Even though the law directly relating to this kind of material is in many respects still being written, a business can provide itself with an added layer or protection through the use of a properly crafted social media policy.  Addressing how your business will deal with this sort of material, setting up procedures on how to retain/store relevant posts, training employees on how to deal with these issues, and taking proper measures to ensure that you do not run afoul of the evidence tampering laws are all fairly easy ways to protect your business. As with many other legal issues, proper planning on the front end can help minor legal problems from developing in to major legal disasters.

Let me know what you think.