An Ounce of Prevention is Worth a Pound of Cure: Key Elements for Social Media Policies (MyCharityConnects 2011)

An Ounce of Prevention is
Worth a Pound of Cure: Key
Elements for Social Media
Policies
Lorraine M. Fleck
MyCharityConnects 2011
June 7, 2011
These slides do not constitute legal advice.

Overview
1. Why do social media policies matter?

2. What should a social media policy address?

3. Can you use social media without being
“anti-social”?

Why do social media policies
matter?
Social media has changed the speed and control
of marketing…
Speed
 Your message can become viral.
 “Need for speed” – less time to formulate a
reasoned and well-considered response.
 Your audience can respond instantaneously,
self-organize and react quickly.

matter?
of marketing…
Control
 Your audience is often linked to a large
network (not necessarily of your choosing).
 Your audience may be able to seize control
of/twist your message.

matter?
of marketing…
Control
 Interest groups can use your social media
infrastructure against your charity and/or
brand.

matter?
Social media policies can assist in protecting:
 Reputation;
 Privacy;
 Physical security; and
 Intellectual property (IP) and proprietary
information.

matter?
Reputation
Yours
 Key to developing trust in any organization.
 Especially important for charities and non-
profits; no trust = no money!

matter?
Reputation
Others
 Social media can be a conduit for defamation
and/or depreciating the goodwill associated
with a brand.

matter?
Privacy
 Hot button issue; relates to your charity’s
reputation.
 While the Personal Information Protection
and Electronic Documents Act (PIPEDA) often
does not apply to non-profits and charities,
PIPEDA may apply in specific circumstances.

matter?
Physical security
 Relates to privacy.
 Compromised if a person’s physical location
is discovered (e.g. kidnapping, robbery,
threats).
 “Digital exhaust” can reveal physical location.
 E.g. pleaserobme.com, “Creepy” app

matter?
Intellectual property (IP)
 Need to protect your charity or non-profit’s
IP and proprietary info.
 Significant legal consequences for
unauthorized use of other’s IP and
proprietary info; reputational damage could
occur as well.

What are the sources of risk?
 User generated risks.
 Employee generated risks.
 Other sources of risks.

User generated risks
 Feedback from users, solicited by the
advertiser (e.g. post your own video/photos
at the request of or on a platform provided
by the advertiser).
 Content posted by users that violates the IP
rights and/or discloses the confidential or
personal information of others.

User generated risks
 Unexpected user backlash.
 Users hijacking your social media
account/site for an unintended purpose.

Employee generated risks
 Employers may be liable for representations
made in the “scope of employment”.
 Statements made on an employee’s personal
time/account may be attributed to employer.
 Employees making comments about
employer’s products and/or services without
disclosing relationship.

Other risks
 Your organization may not exercise full
control over content.
 ISP liability: Your organization could be liable
if it hosts the online content.
 Violating social media network’s terms of use
could result in your charity’s account being
closed and/or your charity being banned.

What should a social media policy
address?
For charities and non-profits, generally:
 Privacy;
 Intellectual property (IP);
 Employee’s internal and external use;
 Defamation;
 Contests; and
 Spam.

Privacy
Privacy laws are breached when a user’s
personal information is collected, used or
disclosed without the appropriate consent.
 Why is the personal information being
collected?
 Will that information be only used internally
or visible outside your charity (e.g. on a social
media network)?

Privacy
 Is there the risk that a user will post someone
else’s personal information?
 Is there adequate security and restricted
access to the personal information?
Best Practices
 Consent is key!
 E.g. do not disclose a donor’s identity without
express written consent.

Intellectual Property
Copyright
 Right to reproduce content and stop others
from reproducing content.
 Applies to the Internet!
 Means that you must get others permission
to use their content (e.g. articles, photos,
logos) unless your activity falls within an
exception to infringement.

Intellectual property
Copyright
 Exceptions to copyright infringement (“fair
dealing”) under specific circumstances:
1. Research/private study.
2. Criticism/review
3. News reporting.
 Exceptions do not apply to advertising.

Copyright
 Parody, while an infringement exception in
the U.S., is currently NOT an exception in
Canada; may change.

Copyright
 General copyright term = Life of the author +
End of the calendar year in which the author
died + 50 years after the year the author
died.
 Usually, person who creates the content is
the owner.
 Exceptions: employees, photographers.

Copyright
 Moral rights (right of author attribution and
integrity of copyrighted work) can prevent
you from altering content.
 Ownership cannot be transferred, but can be
waived.

Copyright and User Generated Content (UGC)
 Because of copyright and moral rights, if you
are using UGC, you must obtain the right to
use/modify the content.
 Risk that UGC may not be truly “user
generated”, and may violate other’s
copyright.

Copyright
Best Practices
 Remember that the same rules offline apply
online.
 Remember that U.S. laws may not apply.

Copyright
Best Practices
 Get written permission to use content unless
your activity falls within an infringement
exception.
 Moral rights may restrict what you can do
with an image, even if an infringement
exception applies.

Copyright
Best Practices
 If dealing with UGC (e.g. in a contest), obtain
the rights to use/modify the content by:
1. Written transfer of ownership with moral
rights waiver; OR
2. Perpetual, royalty free license with moral
rights waiver.

Copyright
Best Practices
 Ensure that users warrant in term of use that
content does not violate copyright, and will
indemnify your organization if copyright is
violated.

Trade-marks
 Can be unregistered or registered.
 The owner of a registered trade-mark has the
exclusive right to use that mark in respect of
specific goods and/or services.
 One cannot “use” a trade-mark in a manner
that depreciates its value or goodwill (e.g.
posting disparaging/defamatory comments).

Trade-marks
 Depending on the circumstances, displaying a
trade-mark in social media may constitute
“use”, meaning you could get sued for trade-
mark infringement, passing off, or
depreciation of goodwill.
 Copyright can also exist in logos. Using logos
without permission can also be copyright
infringement.

Trade-marks
Best Practices
 If you are launching a campaign with new
trade-marks, make sure the trade-marks are
available to use.
 Obtain trade-mark registration(s) for long-
term marks.

Trade-marks
Best Practices
 Ensure that other’s marks are not “used” and
disparaging/defamatory comments are not
posted regarding other’s brands.
 See if you can register your trade-marks on
the major social media platforms (e.g.
Facebook, Twitter, MySpace) to avoid
unauthorized accounts.

Employees
 Non-profits and charities could be liable for
employee’s statements if made during scope
of employment.
 Risk can come from employees use at and
outside of work.
 In the event of a PR problem, overzealous
employees trying to help out could end up
unintentionally making a bad situation worse.

Employees
 Disgruntled current or former employees can
defame your organization, causing damage.
 Employees may post comments about
employer’s products and/or services without
disclosing relationship.
 Employees may release confidential
information without thinking of the
consequences (e.g. Twitpics of visiting
celebrities).

Employees
Best Practices
 Have a social media policy that applies to
everyone – from the mailroom to the CEO.
 Have marketing and legal work together to
draft the policy – no silos!
 Acknowledge that employees may use social
media outside of the office, but make them
aware of the risks to them and your non-
profit/charity that could arise from such use.

Employees
Best Practices
 Acknowledge that employees may use social
media outside of the office, but make them
aware of the risks to them and your non-
profit/charity that could arise from such use.
 Authorize a limited number of users to post
on your organization’s behalf, who cannot
respond to complaints unless authorized.

Employees
Best Practices
 Educate authorized users and all employees
on what they can and cannot post.
 Have a list of social media user names and
passwords in the event an employee leaves.
Restrict access to that list on a “need to
know” basis.

Employees
Best Practices
 Use the “mother” rule – if you wouldn’t want
your mother to see the content – don’t post!

Defamation
What is defamation?
 Oral or written words which tend to lower a
person in the estimation of others or cause a
person to be shunned, avoided or exposed to
hatred, contempt or ridicule.

Defamation
 What is required for a successful defamation
claim?
1. The words are defamatory;
2. The defendant communicated the words
to third persons (e.g. publication); AND
3. The plaintiff is the one defamed.
 Damages can be significant e.g. $125,000
damages in Barrick Gold Corp. v. Lopehandia.

Defamation
 What defences are there to a defamation
claim?
1. Truth.
2. Fair comment: applies only if the
statement is an honestly held expression
of opinion on matters of public interest
and has some factual basis.

Defamation
 What defences are there to a defamation
claim?
3. Responsible communication: statements/
allegations in the public interest even if
not true. Require some diligence to verify.

Defamation
4. Innocent disseminator: Merely distribute
content and exercise little, if any, editorial
control. Defendant must show that:
 Unaware of defamatory statement.
 No circumstances which ought to have
resulted in knowledge of defamatory
statement.
 Not negligent by remaining ignorant of
defamation.

Defamation
 Host will still have some obligations and
potential liability even if insufficient
control e.g. Carter v. BC Federation of
Foster Parents, 2006 BCCA.

Defamation
Best Practices
 If you don’t have anything nice to post…
don’t post!

Contests
 The same laws that apply offline apply online.
 To avoid an illegal lottery – need to remove
either chance or consideration (payment)
from the contest. Need a skill testing
question or no purchase option.
 Develop contest rules to protect your
organization.

Contests
 Disclose any material facts that would affect
chance of winning in contest rules.
 Do not unduly delay distributing prizes.

Contests
Best Practices
 Use “mini rules”.
 Rules should be readily accessible (no
complicated website to navigate, purchase
additional software, or visit additional
website).
 Specify who the contest is open to, otherwise
could be open to everyone in the world.

Contests
Best Practices
 Specify time zone applicable to any deadline
in the rules.
 Anticipate children entering your contest.
Have a parent/guardian click an “I Agree”
button on the entry form to consent to the
contest rules on child’s behalf.

Contests
Best Practices
 Anticipate computer glitches: contest rules
allow for cancellation/contest modification.
 Privacy and disclosure of winner’s personal
info.

Contests
Best Practices
 Anticipate children entering your contest.
Have a parent/guardian click an “I Agree”
button on the entry form to consent to the
contest rules on child’s behalf.
 Assign copyright and waive moral rights in
UGC via “I Agree” button.

Contests
Best Practices
 Have rules prohibit unauthorized third party
IP use in UGC (e.g. music, photos, logos).
 If you receive an unauthorized IP use
complaint, immediately remove offending
content.

Contests
Best Practices
 If you are offering a contest via a social media
platform, check to see if they have rules
regulating such contests (e.g. Facebook,
YouTube, Twitter).

Spam
 New Fighting Internet and Wireless Spam Act
(FISA) may apply to messages sent over social
media networks such as Facebook and
Twitter.
 Under FISA, “commercial electronic
messages” must identify the sender and
provide contact information, as well as
provide an unsubscribe mechanism.

Spam
 “Commercial electronic messages” capture
activity that may be performed without
expectation of profit.
 Significant penalties: Fine up to $1 million for
an individual; up to $10 million for
corporations.

Spam
Best Practices
 Meet the requirements for express or implied
consent.

Spam
Best Practices
 Express consent
1. Provide the purpose for which consent is
sought.
2. Identify the person seeking the consent,
and if different, the person on whose
behalf consent is sought.
3. Provide any other prescribed info.

Spam
Best Practices
 Implied consent
1. Existing business/ non-business
relationship between sender and recipient,
or
2. Recipient has conspicuously published
their address, or has disclosed it to the
sender and…

Spam
Best Practices
 Implied consent
2. Recipient has conspicuously published
their address, or has disclosed it to the
sender and…
i. Has not indicated that they do not wish
to receive commercial messages, and
ii. Message is relevant to recipient’s
business.

Is it possible to use social media
without being “anti-social”?
 YES!
 But need to have in place to limit liability and
mitigate risk.
 Two pronged approach:
1. Legal measures
2. Non-legal measures.

Using social media without being
anti-social
Legal measures
 Comprehensive social media policy and
terms of use (TOU) if operating your own
network.
 Specify permitted users and uses.
 Clearly prohibit the posting of problematic
content, such as personal information (e.g.
donor’s identity), content that violates IP,
defamatory content, other confidential info.

anti-social
Legal measures
 Comprehensive social media policy and TOU.
 Consent for collection/use of personal
information and other privacy issues.
 Use measures to ensure that user agrees to TOU
to ensure enforceability (e.g. click-wrap
agreements).

anti-social
Legal measures
 Comprehensive social media policy and TOU.
 Obtain copyright assignments/licenses plus
moral rights waiver for UGC.
 Avoid disclosing physical location except where
unavoidable.

anti-social
Legal measures
 Using an existing social media platform?
 Comply with social media platform’s TOU.

anti-social
Non-legal measures
 Fall into two categories: technical and
administrative.

anti-social
Non-legal measures
1. Technical
 Verify user identity.
 Control access to the social media network
(where possible).
 Control access to user’s personal information.
 Content filters.

anti-social
Non-legal measures
2. Administrative
 Respond to complaints about content.
 Respond to users posting problematic content.
 Monitor the site
 May lead to increased liability (law unclear).
 But if do not monitor, could hurt your charity’s image
and brand. Uncertain whether lack of monitoring
avoids liability.

An Ounce of Prevention is Worth a Pound of Cure: Key Elements for Social Media Policies (MyCharityConnects 2011)

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An Ounce of Prevention is Worth a Pound of Cure: Key Elements for Social Media Policies (MyCharityConnects 2011)