1. Social Media In
the Food Industry
Managing legal risk to avoid
getting bitten
Carolyn Elefant, LawOfficesofCarolynElefant.com February 5, 2013
2. Why social media in
regulated industries
is like alcohol at a
networking event
A catalyst for facilitating
conversation, connection
and fun…
…or a recipe for disaster?
10. What’s driving the acceleration of
social media?
•Global/mobile
•Rise of the digital natives
•Movement from search to discovery
11. Law
Regulatory/Codes of
Conduct
Platform TOS
Social Media Policy
NETIQUETTE
5 sources of Authority Governing Social
Media in Regulated Industries
12. LAW TRENDS
Employment Law
• Employee SM background checks
• Access to employee passwords/monitoring
• Right to organize v. right to organization:
NLRB/Costco case - September 7, 2012 - social media
policy goes too far) “be aware that statements posted electronically
(such as to online message boards or discussion groups) that damage the
company, defame any individual or damage any person’s reputation or violate
the policies outlined in the Costco Employee Agreement, may be subject to
discipline, up to and including termination of employment.”
• Mobile liability (overtime and off-site negligence
on the job)
13. LAW TRENDS
Copyright/IP
• Who owns the accounts?
•Phonedog v. Kravitz (settled - Twitter)
•Eagle v. Edcomm (LI contacts not trade secrets)
•Maremont v. Fredman Designs (employer posts
promos on employees FB account and
impersonates her)
• Liability/infringement
•DCMA - safe harbor for hosts w/appropriate
takedown notices
14. LAW TRENDS
ADVERTISING
• FTC regulation re: blogging disclosures
•FTC guidance on mobile use (August 2012)
•FTC amends Child Online Privacy Protection Rule
(parents gain more control) (December 2012).
15. LAW TRENDS
E-DISCOVERY AND RECORDS
• Courts beginning to clarify what is discoverable in
social media
•Records maintenance - new complications through
mobility, SEC regulations on retention if communications
are through social media
16. REGULATORY
FDA Rules, largely for pharmaceutical
issued 12/2011
General disclosures for regulated, publicly
traded entities (SEC, Sarbanes Oxley,
etc…)
Emerging issue: duty to report food viruse
transmissions raised on social media?
17. REGULATORY
Platform terms of
service
•Issues regarding platform TOS
• Importance of notifying users of
platform TOS
•Familiarity with platform TOS to avoid
liability
•Special rules on contests
•Prohibitions on spam (Twitter suing
spammers)
18. Social Media
REGULATORY
Platform terms of
POlicy
service
•Significant for risk management, BUT
•Must comply with applicable law (e.g., NLRB)
•Should not reinvent the wheel (tie in existing codes of
conduct and records management practices; don’t re-
write)
•Broad principles with examples better than platform
specific regulation (since platforms are always changing)
•Be updated regularly for new developments (e.g.,
mobile)
•Must be accompanied by adequate training, reputation
monitoring and cyber-insurance if no existing coverage
20. 5 Take-AwAys
For social media use in the
food industry
•Transparency, authenticity and
respect are paramount and better
than platform-specific regulation.
•Social media policy is important
are critical, but only 1 piece of the
puzzle.
•Ounce of prevention = pound of
cure; humor is better medicine
than litigation (if possible)
•Changing parameters require
constant updating. Nothing static.
•Risks can be managed but
rewards can’t be recaptured
21. CONTACT:
Carolyn Elefant
Washington DC
202-297-6100
www.carolynelefant.com
@carolynelefant, @nxtgenenergylaw
www.linkedin.com/in/Carolynelefant
http://pinterest.com/myshingle/
