social media & legal risk
TRANSCRIPT
DENISE FOUCHEENDCODER/ ENDCODE.ORG
WHEN CONVERSATION BECOMES PUBLICATIONUnderstanding Social Media Risks and the Law
CONTEXT:
Social Media as Enterprise Risk (internal and external)
The law as navigator
Brand Risk
The Law
Pre-empting risk, encouraging innovation
Governance
Social Media in Africa
Conversations are everywhere
Conversations are everywhere
Monetising attention
“As wearable technology (Google Glass, fitness bands, Samsung Galaxy Gear) becomes ubiquitous in 2014, the
amount of data created will provide a treasure trove of insights for marketers. Not only does it let marketers know where their customers are but when and how fast. Obviously there is a huge risk here given the sensitivity of the data but the trick here is for marketers to provide the right value in exchange for this invaluable data.”Aaron Strout, Managing Director at W2O Group, co-author of Location-Based Marketing for Dummies
So much content shared today is private, and it often disappears, so marketers aren’t readily able to track and
target such consumers. Expect marketers to explore new, creative ways of reaching consumers who prioritize privacy.David Berkowitz, Chief Marketing Officer of MRY
The most disruptive digital trend I am seeing that will really begin affecting marketers in 2014 is the ‘Internet
of Things’. We already know that we don’t search for content now, content finds you. In 2014, we’re going to start seeing how brands and products find you.Ragy Thomas, CEO and founder of Sprinklr
"Facebook is transformed from a public space to a behavioral laboratory,” it is possible to "deanonymize parts of the data set," or cross-reference anonymous data to make identification possible.psychologist Ilka Gleibs, an assistant professor at the London School of Economics in London
Social Media as Personal Risk
• What would you say?
• What would you disclose?
• Most SM profiles contain personal information : address, telephone number, date of birth
• Information used by banks to verify customers - easily used to impersonate
23% of those surveyed post information online, which they normally wouldn’t disclose in real life, while almost every tenth
user discusses private information with strangers.2014 survey Kaspersky Lab and B2B International
Social Media as Enterprise Risk
• Advertising & marketing
• Promotional offers
• Competitions
• Customer relations
• Electronic commerce
• Blurring of professional and personal voices : staff and customers becoming brand ambassadors
• External
• Ease of access = ease of reputational risk
• Commenting without using appropriate disclaimers
• Irresponsible conduct of senior management
• Lack of protocol and designated employee to administer
• Breach of confidential information
Social Media as Enterprise Risk
• Internal• Strained labour relations
• Lack of corporate social media policy
• Distinction between social and media
• Engaging without policy backup
• Tendency to hide social media as part of media policy
• Companies should implement a social business governance plan
• Social business : integration and operationalisation of social media
• Social media strategy
• Collaboration strategy
• Escalation policy
Acknowledging legal risk
The “chain of publication”
“It is generally safe to assume that anything published on a social network is considered to be in the public domain. This does not absolve the poster (or
anyone who forwards or reposts information) from any legal liability that might arise from posting content that is, for example, in contempt of court, is
defamatory or in breach of copyright.”
The law as navigator
The laws that bind
• Yes, the law as you know it (or not) applies
• No legislation explicity dealing with SM
• Defamation
• Hate speech
• Harassment
• Intellectual Property
• Privacy
• Labour laws
• Contempt of court : right to fair trial
• “sub judice rule", which allows for contempt of court prosecutions if media reports could prejudice a trial. The question is whether there will be "real risk" of substantial prejudice to the administration of justice.
• Concerns expressed regarding the threats and harsh criticism of Judge Thokozile Masipa –racism and contempt of court
Primary legal risks• Privacy infringement
• Intellectual Property infringement
• Defamation
• Consumer rights infringement
• Loss of sensitive information (clients, suppliers, employees)
• Security compromise - issues of enterprise security
POTENTIAL FOR LITIGATION
BRAND RISK
⏏⏏
Privacy• Reasonable expectation of privacy is being challenged by SM
• Information captured without user’s knowledge or consent
• Gathering social media intelligence through data mining: • re-purposing content
• Data-driven, location based services (iBeacon & Nike Fuel Band)
• Personalisation of brand experiences
• Loyalty based experiences – building customer trust
• Social media monitoring by employers
• Policies that prohibit employee postings on SNS
• Screening of prospective employees – discrimination?
Privacy• Identity theft is cited as the major complaint received by the FTC since 1999
• Merging of SM websites – diligence about privacy and security during rapid growth phase
• Single access sign-on – one log in to use multiple websites; single site can show actions and activities on other sites
• Privacy controls and legislation are not universal
• Location-based services – greater security and privacy concerns
Intellectual PropertyTop intellectual property risks:
• Ownership of social media accounts, content and followers
• Cybersquatting: trademark infringement
• Loss of IP
• Unauthorised use of third party IP
• Unauthorised disclosures of trade secrets by employees : publishing of information that establishes competitive advantage
• Brand damage
• Inappropriate content licensing framework
Defamation• A statement that “has the effect of injuring a plaintiff’s reputation”. Reputation is
injured if the statement lowers the plaintiff in the minds of others.
• Falsity is not a consideration
• Information is deemed to have been published once it reaches a third party
• Once published, a presumption of unlawfulness and intention arises
• Social Media content is subject to defamation law
• A statement may be in the form of words, pictures, visual images or gestures
• Companies have the right to good name
• The common law right to a good name and reputation (right to dignity) can trump freedom of expression
• Linking to material on third party sites that contain defamatory or objectionable material
• Defamation laws are not universal
Freedom of expression vs defamation• A balancing of rights
• Section 16 guarantees the right to freedom of expression
• Section 36 (limitation clause) can limit the right to freedom of expression.
Legal limitations on hate speech, speech infringing rights of others, violations of copyright
• Increasingly the right to an opinion clashes with self-censorship imposed in the media space : radio, sport, TV personalities
Harassment• The Protection from Harassment Act 2013
• Harassment on SM involves:• Threatening sms, private Twitter messages and emails to an individual, regardless of the platform
• Threatening remarks made on SM about a person
• Sending emails containing offensive content – pornographic images, sexual references
• Sharing media that is offensive, abusive or embarrassing or have been manipulated that it embarrasses of offends the individual
• Sexual advances made through SM platform
• There is no need for the existence of a domestic relationship between parties
• Apply for a protection order from the clerk of a court which will be issued to accused harasser
• Contravention of order will be deemed guilty of an offence and liable to a fine or imprisonment for a period not exceeding five years
• The person must believe they are being harassed
Brand risk
December 2013 – InterActive Corp, Director of Corporate Communications fired over a tweet to her online account: "Going to Africa. Hope I don't get AIDS. Just kidding. I'm white!"
14 February 2014 -- Automotive Business Review, motoring journalist fired over social media comment: “I don’t blame the guy that shot the motorcyclist. They are obnoxious and arrogant. I cannot wait for my day to come when I will open my door and a motorcyclist will fly off his bike and hopefully break his neck!”
Brand risk• Well-managed, responsible brand
• Posting of innapropriate content
• Publication of confidential information
• Publication of personal and sensitive information
• Disclosures and complaints by customers
• Defamatory comments about the company
• Anonymous defamatory comments about the company
• Dealing with objectionable comments
• Duty to shareholders
• In tune with its customers
= building trust in the channel and the brand
The laws that bindWho is watching over your brand?
http://www.npr.org
The laws that bind
• Constitution
• Statute• Electronic Communications and Transactions Act
• Consumer Protection Act
• Regulation of Interception of Communications Act
• Labour Relations Act
• Protection of Personal Information Act
• Promotion of Equality and Prevention of Unfair Discrimination Act
• Protection from Harassment Act
• Copyright, Trademark, Patent & Designs Act
• Film & Publications Act
• Self-regulatory mechanisms• Industry Charters and Codes: iab, ISPA, WASPA, ASA, FSB,BCCSA
• Directives, Standards
• Case Law
• Contracts
The laws that bind
• Common law : defamation, unfair competition
• Criminal law : cyber crime
• Contempt of court : right to fair trial
• Harassment
• Intellectual Property
• Labour law : course of scope of employment; binding Terms of Service?
• Terms of Service and Rules of SM platforms
• Local law
Regulatory focus areas
• Privacy : regulate the use and protection of PI
• Content : regulate nature
• Cybersecurity, Interception of Communications : regulate the detection and prosecution of offences in the digital space
• Consumer Protection : regulate digital goods/services supplier relationship with consumers
• Intellectual Property : regulate and administer rights protection of IP generators
• Information Management : regulate availability of records, evidence, access to information, classification of information
• Data protection : regulate data protection and privacy
Digital engagement and enterprise risk
• Electronic Communications electronic communications usage by an organisation ECT Act
• Electronic Records Management the lifecycle management of electronic records
ECT Act
• Electronic Marketingthe
requirements for electronic marketingCPA
• Access to Information procedures for accessing public documents PAIA
• Electronic Evidence the requirements for validity and evidential weight
of data messages ECT
Legal developments
• South African case law
• Sedick and Another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA); and
• Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA)
• Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA)
However, normal rules of substantive and procedural fairness do apply
• Smith v Partners in Sexual Health (non-profit) (2011) 32 ILJ 1470 (CCMA)
• LRA : employers may not prevent an employee from exercising rights it confers
• The National Labour Relations Board regards SM policies as potentially chilling on employees’ rights to engage in activity to improve working conditions
• In August the FPB announced it will be considering “mechanisms” to regulate online and new media content by 2017.
Pre-empting risk, encouraging innovation
• Most risks are avoided by exercising COMMON SENSE
• Observing existing codes of conduct
• Employer duty• Social media Policy
• Electronic Communications Policy
• Appropriate Use of the Internet
• Standards of Ethical Behaviour
• Training : legal
• Training : social
• Include Terms of Use & Privacy Policy on websites
• Social Media Disclaimers: “The postings on this site are my own and do not necessarily represent the company’s positions or opinions.”
• Outsourcing of services to digital marketing specialists : governance of outsourcing agreement
Pre-empting risk, encouraging innovation
• Build a culture of compliance• Define a strategy• Create policy : staff contribution guidelines, appropriate content guidelines• Implement policy• Monitor and evaluate• Appoint official SM spokesperson• Address employee activities, usage and monitoring• Ensure administration of sites• Draft Terms of Use for Users• Creative Commons licensing – open licensing framework• Protect personal information provided by customers and employees – ask permission to disclose in
advance• Seek permission to save cookies• Public access to information and archiving practices• Create a response plan for posting of defamatory, offensive or obscene content• Evaluate SM practices• Evaluate Information Management practices• Enterprise risk evaluation• Pre-publicatoin moderation of content
Brand insulation
• Who owns relationships, content, connections and communities created on SM platform?
• Contractual pre-emption
• Consistency of brand and content
• Authorised employees to “speak” on behalf of the brand
• Prior approval for disclosure of special projects
• Prioritise quality of information
Governance
• Leadership
• Responsibility and Accountability
• Resources
• Policies
• Training
• Culture
• Monitoring
• Crisis Management
Governance
• Strategy – Statement of Purpose
• Statement of Programme Objectives
• Statement on Risk and Mitigation of Liability
• Statement on Legal Compliance
• Statement on Ethics
• Statement on e-Records Management
• Privacy Principles
• Confidentiality principles
• Who owns what and why?
Policy solutions – best practice• Approval of social tools• Social media usage in an official capacity requires responsible conduct
o Social Media Handbook for guidance on social media tools and serviceso Grant employees specific approval to use social mediao When posting in an official capacity, remember that you represent the organisationo Catalogue of all personnel approved for social mediao All sensitive, proprietary or classified information cannot be disclosedo Information posted on third party website should be provided on an official websiteo Follow all conduct guidelines
• Social media usage in an unofficial/personal capacity o Present yourself in a manner consistent as an employee of the companyo Use of a disclaimer – it should be clear that all views expressed are that of the
individual and do not represent the views of the companyo All sensitive, proprietary or classified information cannot be disclosedo ENSURE POLICIES ARE COMPLIANT WITH RELEVANT LEGISLATION AND INTERNAL
POLICIES
SM Policy solutions – best practice
• A notice and agreement that all social media accounts created or used on behalf of the company belong solely to the company;
• An agreement that the company retains sole ownership of all login information, passwords, and the associated content of those social media accounts;
• An agreement that the employee has no claim of ownership or interest in the content created and distributed through those social media accounts;
• An agreement that the employee is responsible for managing the account, but that all followers, friends and social connections associated with the social media account belong to the company;
• An agreement that the employees shall relinquish and not use social media accounts created or used on behalf of the company after termination of their employment.
Social Media in Africa
• Arik Air “#ArikWhereIsMyIpad”
• McKinsey & Company, places the continent’s internet contribution to GDP at $18 billion.
• Pew Research approximates 78 percent of internet usage in Africa is for social media
• Africa’s estimated $14-billion social media industry
• With the internet expected to contribute a minimum of $300 billion to Africa’s GDP by 2025, social media could contribute almost $230 billion to Africa’s growth by that time
• Africa is projected to have the largest working population of any continent by 2020 according to a 2012 report by Euromonitor International
Social Media in Africa
• SM is impacting the way business is conducted in Africa
• The 2012 Arab Spring provided a powerful tool for social causes in Egypt and Tunisia
• African businesses and brands are acknowledging the communicative power and increased reach provided by SM
• Jumia the leading ecommerce business in Africa reports social media networks generate 20% of daily traffic
• Banks in Africa are rolling out tech-driven services on social media
Social Media in Africa
• Thanks to SM communities have been able to speak up and pursue causes against governments.
• The internet has witnessed a sustained increase in adoption rates in Africa
• Penetration currently pegged at 16%
• More than 167 million active users across the continent
African legal landscape
• But the law is developing
• Many African countries lack developed SM laws and guidance on SM
• Developments are under way to enforce restrictions on social media
• Nigeria : rollout of a framework for the regulation of SM
• Malawi : warning to those exploiting absence of SM legislation to defame others
• Ghana : call for regulations to be put in place
• Kenya : hate speech laws blamed for violence following election of Dec 2007
• Botswana : the army banned soldiers from FB, Twitter and other SM sites for security reasons
• Initiatives to harmonise regional and international laws in the electronic commerce and data protection are vital
• Africa’s voice in determining laws that will impact social and commercial mobile and online interactions
References
• http://www.ventures-africa.com/2014/06/africa-inside-the-continents-new-14-billion-social-media-industry/
• http://www.lexology.com/library/detail.aspx?g=7f2d55e1-27dd-44a1-92b7-5049ce542761
• http://www.saflii.org/za/journals/DEREBUS/2012/80.html
• http://www.ipu.org/splz-e/asgp12/guidelines.pdf
• http://www.reputation.com/reputationwatch/articles/top-five-social-media-privacy-concerns