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"Meetings and the Law: Must Knows for the Digital Age"

May 8, 2013

Rosemont, Illinois 

©Copyright 2013. Barbara F. Dunn, Esq., Partner, Howe & Hutton, Ltd., Chicago, Washington DC and St. Louis, Missouri. All rights reserved under both Pan-American and international copyright conventions. No reproduction of any part may be made without the prior written consent of the copyright holder.

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Barbara F. Dunn, Esq.PartnerHowe & Hutton, Ltd

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Introduction

• Social media is all around us and it’s here to stay

• Law is Playing “Catch Up” to Social Media

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Social Media Applications

• Social networking– Third-Party Sites, e.g., Facebook, LinkedIn– Your site – “White label”

*Control is key!

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Other Digital Age Considerations

• Blogs

• Mobil APPS

• Electronic Signatures

• Online Privacy

• Virtual Events

• Video/Audiotaping of Speakers

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So, What Should I Be Concerned About?

• Infringement Liability– Trademarks– Copyrights– Patents

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So, What Should I Be Concerned About?

• Defamation

• Antitrust

• Privacy

• Product Liability

• Disclosure of Trade Secrets /Confidential Information

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So What Can I Do About It?

• Protect Your Organization– Rely on Legislation

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Protect Your Organization

• For Members/Participants: – User Agreement

• Do’s/Don’ts• Restriction on Use• Termination• Indemnification• Social Media Policy

For samples, see www.socialmediagovernance.com

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American Red Cross Social Media Policy

• Corporate vs. personal communications

• Do’s and Don’t’s

• Use Disclaimers

• Be Accurate, Considerate and Transparent

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American Red Cross Social Media Policy

• Don’t reveal confidential information

• Respect copyright laws

• Respect work commitments and uphold fundamental principles

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Protect Your Organization

• For Readers of Social Media:– Notice– Disclaimer

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Protect Your Organization

• Monitor and Enforce

• Indemnification in Contracts

• Insurance

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National Labor Relations Board

• NLRB administers the NLRA– Files unfair labor practices complaints

• Prosecutes companies with overly broad social media policies that restrict their employees’ ability to communicate with each other to discuss work matters such as (Protected Activity):

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– Wages– Hours– Working conditions– Griping is unprotected activity:– Posting unprofessional remarks about their

employers on their Facebook pages– Making disparaging, discriminatory or

defamatory comments about their superiors on their Blogs

– Posting pictures of themselves on the Internet that depict the company negatively

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National Labor Relations Board

• Employers note:– Blanket prohibitions on electronic discussions

that raise concerns over wages, hours, or other working conditions may violate the NLRA - protected concerted activity.

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National Labor Relations Board

• Overly broad and unfair labor practice:

• Social media policy that restricts employee’s right to react to or interact with co-workers’ posts about something at work through blogging, Internet posting, tweeting, “friending,” Facebook communications.

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Electronic Signature Act

• June 30, 2000, President Clinton signed into law the Electronic Records and Signatures in Commerce Act (or Electronic Signatures Act).

• Went into effect on October 1, 2000 and gives electronic contracts the same weight as those executed on paper. The act has some specific exemptions or preemptions, notably the provision concerning student loans (section 107, (b)(3)).

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Electronic Signature Act• Although the act enables documents to be

signed electronically, the option to do so lies solely with the consumer – they can still opt for pen to paper

• The act specifically avoids stipulating any 'approved' form of electronic signature, instead leaving the method open to interpretation by the marketplace. Any number of methods are acceptable under the act. Methods include simply pressing an I Accept button, digital certificates, smart cards and biometrics.

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National Labor Relations Board

• Requiring employee to protect Employer’s trade secrets and private and confidential information without providing clear examples of prohibited disclosures – Employees must understand discussion about

working conditions is permitted.

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Rely on Legislation

• Communications Decency Act– Provides that “[n]o 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.”

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– ISP is immune from liability if content was written by a third party rather than the ISP itself

– Excludes allegations involving the violation of a criminal statute, the infringement of intellectual property and a website’s inducement or encouragement of illegal activity.

– Only applies to claims under United States law.

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• Online Copyright Infringement Liability Limitation Act (OCILLA), (Part of 1998 Digital Millennium Copyright Act)– Intended as a shield for internet service

providers from monetary damages as a result of copyright infringement by users.

– Liabilities will be limited as long as it first adopts and reasonably implements a policy of addressing infringement and terminating accounts of users who are found to be repeat infringers.

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• FTC Guidelines on Endorsements and Testimonials – December, 2009– Adds social networking blogs and bulletin

board postings to rules– Material connections must be disclosed when

it is not expected by audience (celebrities are expected to be paid endorsers)

– Disclosure is key

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• Children’s Online Privacy Protection Act– Websites which collect information from

children under age 13– Need verifiable consent to collect personally

identifiable information such as name, address, birth date

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Case Law Developments

• Defamation– Twitter/Courtney Love– Facebook/T&J Towing

• Privacy Rights– Facebook/Civil, divorce and jurors– Twitter/Wikileaks

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Case Law Developments

• Labor and employment– Employer devices/City of Ontario, CA

• Criminal– Cyberbullying/harassment

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What Else is On Your Mind?

Questions? Email them to bfd@howehutton.com

©Copyright 2013. Barbara F. Dunn, Esq., Partner, Howe & Hutton, Ltd., Chicago, Washington DC and St. Louis, Missouri. All rights reserved under both Pan-American and international copyright conventions. No reproduction of any part may be made without the prior written consent of the copyright holder.