social media: marketing and the legal risks training session one: the social media playbook matthew...
TRANSCRIPT
Social Media: Marketing and the Legal RisksTraining Session One: The Social Media Playbook
Matthew Spanovich & Eric Wiechman
December 2, 2011
Spanovich & Wiechman Dec 2011
Spanovich & Wiechman Dec 2011
Schedule of Proceedings
• Eric Wiechman– What is Social Media?– State of the Social Media– Effective Social Media Marketing
• WOMM (Word of Mouth Marketing)• Marketing Conversation• The C’s• Benefits and Goals• Comparing forms of Advertising
Spanovich & Wiechman Dec 2011
Schedule of Proceedings, cont.
• Matthew Spanovich– The Legal Risks of Social Media
• Categorizing the Risk• Defamation• Privacy and Employment • Communication Decency Act• Developing a Social Media Policy
Spanovich & Wiechman Dec 2011
What is Social Media?
• Forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content
- Webster Dictionary
Spanovich & Wiechman Dec 2011
State of Social Media
• Facebook- 800 Million
• Youtube- 3 Billion
• Twitter-200 Million
Spanovich & Wiechman Dec 2011
Age Demographics of Social Media
• Millenials/Gen Y-ers
• Baby Boomers
Spanovich & Wiechman Dec 2011
The C’s of Social Media
• Communicate
• Community
• Creative
• Competition
• Collaborate
Spanovich & Wiechman Dec 2011
Word of Mouth Marketing: WOMM
• Buzz Marketing
• Viral Marketing
• Influencer Marketing
• Evangelist Marketing
• Stealth Marketing
Spanovich & Wiechman Dec 2011
Benefits of Social Media
• Qualitative - Loyalty, Trust, Interaction, Brand Awareness
• Quantitative - Cost-Free
Spanovich & Wiechman Dec 2011
Goals of Social Media Marketing
• Enable, Inspire, Influence
• Love or Hate
Spanovich & Wiechman Dec 2011
Social Media vs. Other Forms
• “In many organizations, the corporate marketing function has lost budget, head count, influence, and confidence, resulting in strategic consequences that run deeper than many managers realize.”
Sloan Management Review
Spanovich & Wiechman Dec 2011
The Legal Risks of Social Media
• Categorize the Risk– First Party Liability: Personal Liability– Agency Superior Liability: Employees, agents, and
co-brands– Secondary Liability: Customers and Users– *International
(Davis Wright Tremaine LLP, 2011)
Spanovich & Wiechman Dec 2011
Action upon Categorization
• First Party: Immediately contact personal lawyer and, if applicable, inform employer
• Agency Superior: Notify superiors and HR• Secondary: HR and PR
Spanovich & Wiechman Dec 2011
First Party Liability
• Most common and most damaging to the individual
• Ex. Hospital employee in Dec 2009 resigned over tweet referring to care for Governor of Mississippi
• Sub-Categories: defamation, false advertising, invasion of privacy, and harassment
(Burke & Goldstein, 2010)
Spanovich & Wiechman Dec 2011
Defamation
• Four Elements of Defamation– 1) A False Statement– 2) Published to 3rd Party without privilege– 3) Fault amounting to at least negligence– 4) Causing special harm
• Court Rulings tend to be subjective
(Blaine T. Bettinger)
Spanovich & Wiechman Dec 2011
Examples of Defamation Cases
Horizon Realty also cited the following tweet from the same user:
Spanovich & Wiechman Dec 2011
Defamation Checklist
False Statement Published to 3rd Party Fault or negligence Special harm
The judge dismissed with prejudice, citing that the tweets were too vague
(Bettinger)
Spanovich & Wiechman Dec 2011
Privacy Laws
• Must consider all laws protecting individual privacy, including: health, financial, online, communication, education, and information privacy
• In court, public postings on public sites are not considered private– Exceptions: password protected site or if the
individual uses security settings to prevent viewing
Secured Communications Act (Saper)
Spanovich & Wiechman Dec 2011
Employment Laws
• Employer can monitor all work-issued equipment if it notifies employees beforehand
• If not, courts decipher when employee has a reasonable expectation for privacy
• Employers cannot hack into employee accounts to obtain password-protected materials under the Stored Communications Act
(Elefant, p. 17)
Spanovich & Wiechman Dec 2011
Employers’ Rights
• Can check social media to verify information provided by a job applicant
• Can view social media for postings of harassment between employees
• Controversy: Viewing social media to determine character of candidate
• 29 states have lifestyle statutes, including WI
(Saper) (Elefant, p. 15) (Burke & Roth, 2011)
Spanovich & Wiechman Dec 2011
Communications Decency Act
• Ruled unconstitutional in 1996 • Section 230
– No provider or user of a social media platform can be treated as the publisher of any info provided by another user or provider
• Section 230 does not protect against Federal criminal or intellectual property claims
(Bettinger) (Steinman & Hawkins, p. 8)
Spanovich & Wiechman Dec 2011
Social Media Policy
• Last line of defense• Explicitly state in handbook
– Employee activity vs. Private activity– Monitoring approach
• Four horsemen of social media– Breach of Confidentiality, Defamation, ‘False and
Misleading’, and Infringement• Oversight system
(Davis Wright Tremaine LLP, 2011)
Spanovich & Wiechman Dec 2011
Conclusions & Recommendations
• 4 recommendations– 1)Co’s should educate employees in the C’s and
train to engage in consumer-driven dialogue– 2)Co’s should provide training for employees in
social media law– 3)All co’s should immediately develop social media
policies– 4)US courts should find similar ground on rulings