3. 1st Amendment
Government cannot regulate content of speech.
•Exceptions:
• “fighting words”
• creating imminent and lawless action
• obscenity and defamation
• Espionage Act
• securities law violations
Content as Conduct
4. 1st Amendment
•If words = “conduct”, 1st Amend. protections lost;
speaker subject to full scope of criminal code:
• aiding and abetting crimes
• conspiracy crimes
• public disturbances
• interfering with police investigations etc.
Content as Conduct
5. Content as Conduct
1st Amendment
•If words = “conduct”, 1st Amend. protections lost;
speaker subject to full scope of criminal code:
• aiding and abetting crimes
• conspiracy crimes
• public disturbances
• interfering with police investigations etc.
6. “Actions” constituting “conduct”:
• Encouraging/aiding/assisting suicides via internet
chat rooms.
• Intentionally or knowingly aiding and abetting a
crime: Publishing book that describes how to
commit certain crimes – e.g. grow marijuana.
• Contributory copyright infringement: Publishing
newspaper article or website that points to a
knowingly infringing site.
Content as Conduct (examples)
7. “Actions” constituting “conduct”:
• Publishing news story that reveals name of a
previously unnamed witness to a crime who is part of
investigation or prosecution.
• Publishing news story that reveals existence of a
wiretap may violate obstruction of justice laws.
• Family Law Case: Teaching one’s child racist, pro-
polygamy, or pro- or anti-homosexuality views may
(in the views of some family court judges) be contrary
to the “best interests of a child”.
Content as Conduct (examples)
8. “Actions” constituting “conduct”:
• Antidiscrimination Laws: Making statements that create
offensive work, educational, public accommodation, or
housing environment based on race, religion, sex, age,
disability, or sexual orientation.
• Federal Housing Act: Speaking out against proposed
group home for mentally disabled might violate the
Federal Housing Act’s ban on “interfer[ing] with any
person in the exercise or enjoyment of” the right to be
free from housing discrimination based on handicap.
(Source: http://www.volokh.com/posts/1183408048.shtml)
Content as Conduct (examples)
10. “Vicarious Liability”
Can include:
• Defamation
• Privacy violations
• Data security breaches
• Securities law violations
• Other criminal conduct.
Online Conduct and Vicarious Liability for
Employers
11. “Vicarious Liability”
•If employer knows or has reason to know that an
employee (including contractors and other outside
service providers) will be engaging in conduct ...
•If employee is acting within scope of job when she
says something defamatory ...
•Even if employees acting anonymously on social
media, employers still may be liable for employees’
actions.
(Source: http://solutions.webtitan.com/blog/bid/144922/Employers-liable-
for-employee-libel-on-Social-Networks-Network-Security)
Online Conduct and Vicarious Liability for
Employers
12. Example #1 (vicarious liability)
Rahman v. State (2011) (Wash. S. Ct.)
• Washington state employee drives State vehicle
on a State business trip, brings wife as
unauthorized passenger
• Car accident and wife injured.
• Wife successfully sues State for vicarious liability
for husband’s negligence.
Online Conduct and Vicarious Liability for
Employers
13. Example #2 (contributory liability):
Perfect 10, Inc. v. Megaupload Ltd. (SD Cal. 2011)
• File-sharing case: Copyright holder – Perfect 10 –
successfully made claim of infringement against
Megaupload – contributory and direct negligence.
• It’s not just employees to be concerned about.
What about 3rd party contributors to company’s
public websites?
Online Conduct and Vicarious Liability for
Employers
14. DMCA and CDA Protections? Not available to
Businesses as Employers
• Employers cannot claim CDA and DMCA protections for
website and therefore subject to direct, contributory
and/or vicarious liability for actions of employees.
• DMCA and CDA protections for website operators
protect operators from liability for actions of
independent third parties not from actions of their own
employees.
• Likewise, employees themselves not protected from
consequences of their own actions.
Online Conduct and Vicarious Liability for
Employers
15. Social Media Policies and Training
• Having good social media policy will not immunize
against vicarious liability, but lack of having one will
create easy argument for negligent supervision.
• Businesses cannot prevent all employees from
engaging in all harmful activities. BUT …
• Training and policies educate employees about
problems and risks involved AND rebut arguments
that employer took no interest or role in seeking to
prevent harm from happening in first place.
Online Conduct and Vicarious Liability for
Employers
17. Anatomy of a Social Media Policy
Social Media Policies and Training
• Disclaimers / Transparency
• Identify yourself as employee and make it clear you
are speaking for yourself and not the company
• Media Inquiries
• Direct all media inquiries to _____
• Proprietary & Confidential information
• Don’t comment or speculate on plans, strategies,
prospects, etc.
• If you’re unsure of sensitivity, ask or refrain.
18. Anatomy of a Social Media Policy
Social Media Policies and Training
• Copyright
• Respect copyright, fair use, and financial disclosure laws.
• Never use more than an excerpt and use a hyperlink to that person’s
work whenever possible
• Respectfulness
• Add value and avoid unconstructive arguments
• Make sure what you share is factually correct
• Be the first to respond to your own mistakes
• Everything is permanent
• Serving customers and community
• Share expertise where appropriate
• Don’t forget your day job!
• Refer back to Code of Conduct / Ethics policy
19. Anatomy of a Social Media Policy
Social Media Policy Templates
• IBM
• Dell
• Intel
• Coca Cola
20. Social Media Training Program
Philosophy - Educate & Empower
• Find an employee getting social media right
• Using appropriate content/tone
• Good use of transparency/disclaimers
• Active, but not so much it interferes with work
• Uses clear bio and photos
• Well respected participant in the industry dialogue
21. Social Media Training Program
Educate & Empower
• Establish messaging (marketing)
• Incorporate sample social updates into internal outreach
• Select good accounts to follow/share
• Review policies (Legal/HR)
• Make part of employee handbook process
• Do refresher courses periodically
• Educate on content, tools, best practices
• Social Media 101
• Social Media Best Practices
22. Social Media Training Program
• Certification programs
• Formal training
• In-house
• Part of formal review process
• Divide based on role (SM for sales, SM for recruiting, etc.)
• Reverse Mentoring
• Archive trainings
24. • Employee use of social media must conform with
copyright laws and fair use restrictions.
• Same rules of “vicarious liability” for employers
(discussed above) apply to copyright and trademark
infringement.
• Examples: Where employees use social media as part
of their jobs, including posting content to company
Facebook pages, twitter accounts, Pinterest pages etc.
• Financial services cos are targets for claims from
artists, photographers, bloggers and other publications
for copyright infringement.
Copyright and Other IP Headaches
25. Examples (copyright)
• Fair Use: Sharing Newsletters: Lowry’s Reports, Inc. v.
Legg Mason, Inc. (D. Md 2003).
• $20 million judgment against Legg Mason
• Legg Mason had 1 subscription to Lowry’s market newsletter, but
distributed company-wide via e-mail.
• Fair Use: Commercial vs. non-commercial: Sony Betamax
case (Sony Corporation of America v. Universal City
Studios, Inc. (1984))
• Supreme Court: Commercial uses give rise to presumption of unfair
use.
• BUT: Commercial use can still = fair use.
Copyright and Other IP Headaches
26. Examples (trademark)
• “Superman” (Part 1): Magazine story features a
photograph of a woman wearing a t-shirt with a picture of
a famous comic books superhero character, a
trademarked character. The story is about the woman
and her battle with a serious illness.
• “Superman” (Part 2): A cash-for-gold jewelry dealer in
Toronto promotes his business through television
commercials featuring character “Cashman” dressed in a
red cape and pair of blue tights and dollar signs on his
chest.
Copyright and Other IP Headaches
28. Employer Access to Employee Social Media
• Question: How are employers supposed to “supervise”
employee online conduct – for which employers may be
held vicariously liable (see above discussion) – if
employers are not allowed to access employee
passwords?
Social Media and Employment
29. Password-Access Restriction Laws
• What these laws do?
• What these laws do not do? Generally apply only to
applicants (not to hired employees)
• Employees subject to employment contracts and
personnel policies of employers.
• Passwords can still be accessed for these purposes:
• For purposes of employment investigations and other workplace
investigations.
• If permitted under employment policies and employment contracts.
Social Media and Employment
30. Password-Access Restriction Laws
• Employees get no protection in use of employer
computers, mobile devices and so forth: employer devices
belong to the employers, period.
• Financial services employers are also challenging these
laws as inconsistent with obligations under state and
federal securities laws to monitor employee
communications for purposes of preventing abuses of
securities laws.
Social Media and Employment
31. Other Workplace Issues
• Workplace harassment, discrimination and bullying:
Cases from Facebook wall posts and Twitter tweets.
• Anonymous posters and employee actions via employer’s
system or under employer’s name. Employers could face
same legal pressure to disclose identities for reasons
discussed above:
• Doesn’t necessarily = liability, but may still require
disclosure.
Social Media and Employment
33. • Non-solicitation policy during work
• Lawful, off-duty conduct is okay
• EEOC guideline: Could this be perceived as
representing the the employer’s beliefs/views?
• Be sensitive to potential discrimination
Social Media and Political Dialogue / Issue
Advocacy
