980 9 th street, suite 2300 sacramento, california 95814 telephone: 916.326.5150 facsimile:...
TRANSCRIPT
980 9th Street, Suite 2300 Sacramento, California
95814Telephone: 916.326.5150Facsimile: 916.497.0708
300 Montgomery Street, Suite 788
San Francisco, California 94104
Telephone: 415.983.5960Facsimile: 415.983.5963
Email: [email protected]
Website: http://shawvalenza.com
© 2013 Shaw Valenza LLP. All Rights Reserved.
980 9th Street, Suite 2300 Sacramento, California
95814Telephone: 916.326.5150Facsimile: 916.497.0708
300 Montgomery Street, Suite 788
San Francisco, California 94104
Telephone: 415.983.5960Facsimile: 415.983.5963
June 12, 2013
UNDERSTANDING THE LAW: FACEBOOK, TWITTER, AND
OTHER SOCIAL MEDIA
Presented by: Jennifer Brown Shaw, Esq.
© 2013 Shaw Valenza LLP. All Rights Reserved.
TYPES OF SOCIAL MEDIA
Social media can take many different forms Blogs Podcasts On-line profiles Wikis Video Email Instant messaging
© 2013 Shaw Valenza LLP. All Rights Reserved.
TYPES OF SOCIAL MEDIA (CONT.)
Social media applications Facebook LinkedIn Twitter MySpace Friendster Skype
YouTube Yelp Flikr Wikipedia Second Life Instagram
© 2013 Shaw Valenza LLP. All Rights Reserved.
SOCIAL MEDIA STATISTICS
Who Uses Social Media? 67% of all adults use at least one form
• 83% of those age 18-29 years old• 77% of those age 30-49 years old• 52% of those age 50-64 years old• 32% of those age 65 and older
Facebook – over 1.11 billion active users Twitter – over 200 million active users LinkedIn – over 225 million active users
Pew Research Center Internet project (December 2012)
© 2013 Shaw Valenza LLP. All Rights Reserved.
EMPLOYER RESPONSE TO SOCIAL MEDIA
39% of employers have a policy addressing social media (work and non-work use)
48% of employers only conduct passive reviews of employee activity on social media sites
42% of employers have disciplined an employee based on social media activities
Survey, Health Care Compliance Association and the Society of Corporate Compliance and Ethics (2011)
© 2013 Shaw Valenza LLP. All Rights Reserved.
WHY SHOULD YOU CARE ABOUT WORK-RELATED SOCIAL MEDIA USE?
Loss of productivity Confidentiality issues Violations of EEO and other internal policies The “workplace” is now anywhere
employees “engage” with one another (even in cyber space)
© 2013 Shaw Valenza LLP. All Rights Reserved.
THE LAW AND SOCIAL MEDIA
Still no “law of social media” Courts apply traditional common law and
statutory principles Internet policies may set higher standards
than the law
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KEY LEGAL ISSUES
1. Freedom of speech2. Public records laws and document retention3. Confidentiality (HIPAA, privacy, consent)4. Employment issues5. Copyright/intellectual property
© 2013 Shaw Valenza LLP. All Rights Reserved.
FREEDOM OF SPEECH
Government entities cannot create a public forum and then selectively make content-based decisions about the “speech”
If you opt to open a forum, you cannot remove speech you don’t like if it is on-topic (e.g., unpleasant criticism of an investigation, etc.)
Content restrictions must be clear, objective, prophylactic, and uniformly enforced
© 2013 Shaw Valenza LLP. All Rights Reserved.
FREEDOM OF SPEECH (CONT.)
Four types of fora created by social media use:
Information
Sharing Only
Non-Public Forum
(Restricted Access)
Limited Public Forum
(Restricted Topic(s))
Designated
Public Forum
Speech Restriction Continuum
MoreControl
LessControl
© 2013 Shaw Valenza LLP. All Rights Reserved.
FREEDOM OF SPEECH (CONT.)
Ensure applicable policies are clear and uniformly applied
Seek advice of legal counsel if you want to push the envelope!
© 2013 Shaw Valenza LLP. All Rights Reserved.
PUBLIC RECORDS LAWS
In most states, public records rules make nearly all “documents” – including those in electronic form – public records open to inspection
The “New York Times” Rule
© 2013 Shaw Valenza LLP. All Rights Reserved.
CONFIDENTIALITY (HIPAA, GINA, PRIVACY, CONSENT)
Social media turns everyone into a publisher of content
Easy to violate confidentiality/privacy protections
Adopt appropriate policies to regulate disclosure of confidential information (e.g., health-related information, on-going audits/investigations, etc.)
© 2013 Shaw Valenza LLP. All Rights Reserved.
EMPLOYMENT
Social media can provide useful information, but be careful!
Consider notice/disclosure when using on-line information
Risks Harassment/discrimination claims
© 2013 Shaw Valenza LLP. All Rights Reserved.
EMPLOYMENT (CONT.)
Retaliation claims based on “protected activities”/whistleblower actions
Privacy issues/defamation claims “Fruit of the poisonous tree” (how you
find out matters) Key Question: Does the conduct violate your
lawful policy?
© 2013 Shaw Valenza LLP. All Rights Reserved.
RESTRICTIONS ON EMPLOYEES’ SOCIAL NETWORKING ACTIVITIES
Consider adopting policies that: Restrict on-line access during work time Prohibit inappropriate comments about
other employees, auditees, etc. Protect confidential information Prohibit “LinkedIn” and other references Diminish employees’ reasonable
expectations of privacy Be careful with “lawful off-duty conduct”
© 2013 Shaw Valenza LLP. All Rights Reserved.
THE BOTTOM LINE
The law is changing Keep up and keep focused!
© 2013 Shaw Valenza LLP. All Rights Reserved.
QUESTIONS?
© 2013 Shaw Valenza LLP. All Rights Reserved.
THANK YOU FOR YOUR PARTICIPATION!
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