How you can protect your online identity, online privacy and VPNs
Legal Issues In Social Media Oct. 2012
1. Legal Risks in Social Media
Lori Krafte
Wood Herron & Evans LLP
2. Social Media Environment
Web-based and mobile technology that
allows you to interact with your clients
(and lets them interact with each other).
•Facebook/YouTube/Twitter/Pinterest
•Blogging
•Foursquare and other mobile apps
3. Social media means
opportunities…
• Drive traffic to get your message out
• Increase engagement with the BBB
• Hear from your clients
• Be where your clients live!
4. … but there are risks, too.
You have less control over your message:
• Because the BBB’s own speech is more
spontaneous and less likely to be vetted
• Because client-generated speech might
become your own
5. Before posting, blogging, tweeting,
collecting, you’ll want to understand…
• Privacy and data security concerns
• Copyrights in the social media environment
• Criticizing without defaming – and when you
can host (not post!) defamatory comments
6. Do’s and Don’ts of Privacy and
Data Security
Know what laws/standards apply to your BBB
• FTC jurisdiction – it’s complicated
• state laws
• best practices
7. Personal Information –The Definition Is
Expanding
• PI has always included first and last
name, address, email, telephone number,
SSN, etc.
• now, probably includes IP addresses,
customer numbers held in cookies, linking
of information across websites, and
geolocation information.
• photographs alone are also now PI
8. Personal Information
• don’t collect it if you don’t need it
• limit access to it, and store it properly
• think about physical and logical
security
9. Privacy Policy
Website privacy policies used to be voluntary; now
you may be required to have one
• your site is almost certainly interactive now
• how are you collecting information from
consumers?
• how are you sharing information collected online
or through mobile? with whom?
10. Privacy Policy (continued)
• how will users interact with you? passive viewing? contributing
content?
• what information will they provide? what will be passively collected?
• will there be any community forums?
• how long will info collected online be kept?
• will personal info collected online be shared with any third party?
11. Data Collection
• don’t collect it if you don’t need it
• think about how you will interact with
consumers
• will you need to contact them?
• if so, will you use email? phone? postal
address? if not all of these, you don’t need the
info
12. Data Security
• limit access to it, and store it properly
• think about physical and logical security
• pay attention to how you move it
• treat it as you would treat hazardous waste
13. Data Retention and Destruction
• don’t keep it longer than you need it
• dispose of it properly
• liability for identity theft should not be sitting in your
dumpster – shred, shred, shred!
• clean hard drives before discarding
• know the state laws regulating disposal of personal data
14. CAN-SPAM Act of 2003
Purpose was to regulate unsolicited bulk commercial
email
• but it applies to ALL commercial messages,
bulk or not
• including B2B messages for any product or
service
15. CAN-SPAM (continued)
• clearly and conspicuously identify the
email as an advertisement
• make sure all header info is correct
• include a valid physical postal address
16. CAN-SPAM (continued)
• create an easy opt-out with clear notice
– and honor it quickly
• don’t forget that your email service may
have policies even more restrictive than
CAN-SPAM!
17. Sharing Mailing Lists
• Outgoing:
• movement toward opt-in or permission-based
marketing
• e.g., SB27 – California’s “Shine the Light” law
requires certain information-sharing disclosures
and consumer choice
• Incoming: scrub for DNE
18. Special Considerations for Mobile
• just because compliance is more
difficult doesn’t mean the rules are
different!
• truth in advertising…dealing with the
fine print
• geolocation data
19. What Do You Do When Something Breaks?
• have a plan – don’t wait till disaster
happens
• investigate
• stop the bleeding
• remediate
• educate
• communicate
20. Do’s & Don’ts of Criticizing
without Defaming
The defamation issue arises in different
contexts:
•tweeting/blogging/posting about others
•hosting third party comments on your site
21. Defamation ≠ Disparagement
• disparaging a company’s product or
service is not illegal
• the government’s view is: disparage away,
as long as it’s true
• truthful information, even if unflattering,
is important for consumers
22. Even Some False Speech Is Protected
• proving defamation is intentionally
difficult
• understand why we tolerate some false
speech (and why you should be careful
anyway)
23. What is defamation?
Defamation occurs when a false and
defamatory statement of fact about an
identifiable person or company is
published to a third party, causing injury
to the person or company’s reputation.
24. Elements of a Defamation Claim:
1. the publication
2. of a defamatory statement of fact
3. that is false
4. that is of or concerning the person/business
5. and that causes damage to the
person/business’s reputation
6. with the requisite degree of fault
25. Defenses to a Defamation Claim
•Truth
•Opinion
•Consent
•CDA § 230
26. CDA § 230 is your friend!
• for BBBs using social media, this part of
the Communications Decency Act is a
critical development in defamation law
• immunity for providers with respect to
third party content
27. Two-fold Immunity
• for hosting a site where someone else
posts a defamatory statement
• for screening and editing objectionable
materials someone else posts on your site
28. CDA § 230(c)(1). Treatment of a
publisher or speaker.
“No provider or user of an interactive
computer service shall be treated as the
publisher or speaker of any information
provided by another information content
provider.”
29. CDA § 230(c)(2). Civil liability.
“No provider or user of an interactive computer
service shall be held liable on account of…any
action voluntarily taken in good faith to
restrict access to or availability of material
that the provider or user considers to be
obscene, lewd, lascivious, filthy, violent,
harassing, or otherwise objectionable,
whether or not such material is
constitutionally protected.”
30. Practical Steps to Avoid Liability
for Defamation in BBB’s Own Speech
• check and re-check your facts
• don’t rely on a single source; get
corroboration
• conduct appropriate research and
investigation
31. Keeping CDA Immunity
• don’t become part of the conversation
• be especially careful when moderating
discussions
• don’t suggest anything specific that would
invite false and defamatory statements
32. Keeping CDA Immunity
• but don’t worry about editing, monitoring,
screening
• you don’t become a speaker just by these
editorial acts
• so feel free to delete objectionable posts,
and to set community standards for
posting
33. Copyrights in the
Social Media Environment
• understand and protect the assets you’re
creating when you design a site, when you blog,
even when you tweet!
• pay attention to what you can and cannot use of
others – copyright damages can be steep
34. What is a Copyright?
• a limited monopoly that protects:
• original works of authorship
• that are fixed in a tangible medium of
expression
• easiest intellectual property right to obtain
• it’s automatic (though registration has
advantages)
35. What does the copyright monopoly
get you?
• the right to control the reproduction,
distribution, and adaptation of your creative
expression
• others may copy your facts and ideas, but not
your expression of them
• and, while copyright doesn’t protect titles and
short phrases, blog entries and websites are
covered
37. Copyright Infringement in Social Media
• rules are the same, but ease of infringing in the
online environment makes it a huge problem
• and the online environment poses additional
risks: the digital copy is as good as the original
39. Elements of Copyright Infringement
• plaintiff owns a valid copyright
• defendant copied from plaintiff’s work
• the copying was of the protectible portion
(not facts, public domain, ideas)
40. Infringement and the Internet
• the internet functions by linking and making
multiple copies and derivative works
• lots of copying is unauthorized, but not all
• lots of derivative works are unauthorized, but
not all
• be sure to look at the site’s policies!
41. Infringement and the Internet (continued)
• most unauthorized copying is infringing,
but not all
• most unauthorized derivative works are
infringing, but not all
• even if the site does not authorize the use,
it might be permissible “fair use”
42. Defenses to Infringement:
(1) Fair Use
• excuses reasonable unauthorized use that in
some way advances the public benefit without
substantially impairing the present or potential
economic value of the work
• examples: criticism and commentary, news
reporting, classroom use, research and
scholarship – sometimes parody
43. Fair Use (continued)
• is there a difference between retweeting a
photo, and posting it on your BBB site?
• is there a difference between using
Pinterest personally and using it for
business purposes?
44. Defenses to Infringement:
(2) The DMCA Safe Harbor
• Congress realized that hosts and service
providers were worried about liability for
what was posted by others on their sites
• in 1998, Congress passed the Digital
Millennium Copyright Act
45. DMCA Safe Harbor
• places the burden on copyright owners to
identify and notify “mere conduit” service
providers of infringement on their systems
• establishes safe harbors for providers who
take the required steps
46. Who Is Protected by Safe Harbor
Providers in four categories of conduct:
• transitory communications (routing services)
• system caching (temporary data storage)
• information location (search engines)
• storage of info on system/network at direction of user
47. Storage at the Direction of the User
You have safe harbor against an infringement claim if you
host a site where someone else posts infringing content, if:
•you have no knowledge of infringement
•on notification, you take down or block the content
•you designate an agent to receive notice
•you comply with take-down and put-back provisions
48. Why the Safe Harbor Is So Important
• BBBs increasingly permit others to
provide content on sites the BBBs host
• this loss of control over content exposes a
BBB to claims (including statutory
damages of up to $150,000 per work
infringed, plus attorney’s fees!)
49. Remember…
• social media provides new opportunities to
engage your audience, but…
• pay special attention to:
• -----------
• Preserving CDA immunity
• Taking advantage of the DMCA safe harbor
