Presentation to the inaugural lawTechcamp on key elements for social media policies. For a more in-depth discussion on key elements for social media policies, please see my June 7, 2011 presentation to the MyCharityConnects 2011 with the same title.

1. An Ounce of Prevention is
Worth a Pound of Cure: Key
Elements for Social Media
Policies
Lorraine M. Fleck
lawTechcamp 2011
June 18, 2011
These slides do not constitute legal advice.

2. Overview
1. Why do social media policies matter?
2. What should a social media policy address?

3. Why do social media policies
matter?
Social media has changed the speed and control
of marketing.

4. Why do social media policies
matter?
Social media policies can assist in protecting:
 Reputation;
 Privacy;
 Physical security; and
 Intellectual property (IP).

5. Why do social media policies
matter?
Reputation
 Yours.
 Others.

6. Why do social media policies
matter?
Privacy
 Hot button issue.
 Mainly the privacy of others; can relate to
your organization’s privacy as well.
 Relates to your organization’s reputation.

7. Why do social media policies
matter?
Physical security
 Relates to privacy.
 Both yours and others.
 “Digital exhaust” can reveal physical location.
 E.g. pleaserobme.com, “Creepy” app

8. Why do social media policies
matter?
Intellectual property (IP)
 Yours.
 Others.

9. What are the sources of risk?
 User generated risks.
 Employee generated risks.
 Other sources of risks.

10. What should a social media policy
address?
Generally:
 Privacy;
 Intellectual property;
 Employee’s internal and external use; and
 Defamation.
Also: follow the policies of the social media
network you are using.

11. Privacy
 Privacy laws (e.g. Personal Information
Protection and Electronic Documents Act
(PIPEDA) are breached when a user’s
personal information is collected, used or
disclosed without the appropriate consent.
Best Practices
 Written consent is key!

12. Intellectual Property
Copyright
 Right to reproduce content and stop others
from reproducing content; permission to
reproduce required unless activity falls within
an infringement exception.

13. Intellectual property
Copyright
 Copyright infringement exceptions (“fair
dealing”) under specific circumstances:
1. Research/private study.
2. Criticism/review
3. News reporting.
 Exceptions do not apply to advertising.
 Parody NOT an exception in Canada.

14. Intellectual property
Copyright - Moral Rights
 Moral rights (right of author attribution and
integrity of copyrighted work) can bar
altering content.
 Moral rights cannot be transferred, but can
be waived.

15. Intellectual property
Copyright - User Generated Content (UGC)
 Because of copyright and moral rights, if you
are using UGC, you must obtain the right to
use/modify the content.
 Risk that UGC may not be truly “user
generated”, and may violate other’s
copyright and moral rights.

16. Intellectual property
Copyright: Best Practices
 Get written permission to use content unless
activity falls within an infringement
exception.
 Get a written waiver of moral rights.

17. Intellectual property
Copyright: Best Practices
 If dealing with UGC, obtain:
1. The rights to use/modify the content by
written transfer of ownership or
perpetual, royalty free license with moral
rights waiver; and
2. Indemnity against third party copyright
and moral rights violations.

18. Intellectual property
Trade-marks
 The owner of a registered trade-mark has the
exclusive right to use that mark in respect of
specific goods and/or services.
 One cannot “use” a trade-mark in a manner
that depreciates its value or goodwill (e.g.
posting disparaging/defamatory comments).

19. Intellectual property
Trade-marks
 Depending on the circumstances, displaying a
trade-mark in social media may constitute
“use”, meaning you could get sued for trade-
mark infringement, passing off, or
depreciation of goodwill.

20. Intellectual property
Trade-marks: Best Practices
 If you are launching a campaign with new
trade-marks, make sure the trade-marks are
available to use.
 See if you can register your trade-marks on
the major social media platforms (e.g.
Facebook, Twitter, MySpace) to avoid
unauthorized accounts.

21. Intellectual property
Trade-marks: Best Practices
 Obtain trade-mark registration(s) for long-
term marks as a “sword or shield”
mechanism.
 Ensure that other’s marks are not “used” and
disparaging/defamatory comments are not
posted regarding other’s brands.

22. Employees
 Employers may be liable for employee’s
statements if made during scope of
employment.
 Risk can come from employees’ use at and
outside of work.
 Beware the overzealously loyal employee
making a PR crisis worse!

23. Employees
 Disgruntled current or former employees can
defame your organization, causing damage.
 Employees may post comments about
employer’s products and/or services without
disclosing relationship.
 Employees may release confidential
information without thinking of the
consequences (e.g. Twitpics of visiting
celebrities).

24. Employees
Best Practices
 Have a social media policy that applies to
everyone – from the mailroom to the CEO.
 Have marketing and legal work together to
draft the policy – no silos!
 Acknowledge that employees may use social
media outside of the office, but make them
aware of the risks to them and your
organization that could arise from such use.

25. Employees
Best Practices
 Authorize a limited number of users to post
on your organization’s behalf, who cannot
respond to complaints unless authorized.
 Educate authorized users and all employees
on what they can and cannot post.

26. Employees
Best Practices
 Have a list of social media user names and
passwords in the event an employee leaves.
Restrict access to that list on a “need to
know” basis.

27. Defamation
What is defamation?
 Oral or written words which tend to lower a
person in the estimation of others or cause a
person to be shunned, avoided or exposed to
hatred, contempt or ridicule.

28. Defamation
 What is required for a successful defamation
claim?
1. The words are defamatory;
2. The defendant communicated the words
to third persons (e.g. publication); AND
3. The plaintiff is the one defamed.

29. Defamation
 What defences are there to a defamation
claim?
1. Truth.
2. Fair comment.
3. Responsible communication.
4. Innocent disseminator.

30. Defamation
Best Practices
 If you or your employees don’t have anything
nice to post and it does not fall within the
exceptions… don’t post!

31. Thank you…Questions?
Lorraine M. Fleck
Barrister & Solicitor | Trade-mark Agent
E-mail | lfleck@hofferadler.com
Website | www.hofferadler.com
Blog | www.ipaddressblog.com
| @lorrainefleck | @HofferAdler

32. An Ounce of Prevention is
Worth a Pound of Cure: Key
Elements for Social Media
Policies
Lorraine M. Fleck
lawTechcamp 2011
June 18, 2011
These slides do not constitute legal advice.