Author Robert McHale joined Social Media Club for our July Book Club Webinar featuring his new title, Navigating Social Media Legal Risks: Safeguarding Your Business - View the introductory post here: http://socialmediaclub.org/blogs/from-the-clubhouse/social-media-july-book-club-navigating-social-media-legal-risks-robert-mcha
Slides are property of Author Robert McHale, Esq.
4. The Intersection of Law and Social Media
Advertising and Marketing
Online Defamation
Human Resources, Recruiting, and Employee Rights
Privacy and Data Security
Intellectual Property
Copyright
Trade Secrets
Trademarks
Regulatory Compliance
Litigation and E-discovery
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8. Risk Areas
1. Employee Monitoring, Screening and Discipline
2. False Advertising
3. Endorsements and Disclosures
4. Social Media Contests and Sweepstakes
5. Trademark Protections from Brandjacking and
Cybersquatting
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10. Social Media in the Workplace
Social Media Background Checks (FCRA)
Employee Discipline (NLRA)
Employee Endorsements (FTC)
Discrimination / Harassment
Privacy
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11. The FCRA is Real. So is FTC Scrutiny.
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12. When the FTC Speaks, Spokeo Listens.
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13. Facebook Firings - What the NLRB Has to Say.
Employees are prohibited from “[m]aking disparaging comments
about the company through any media, including online blogs,
other electronic media or through the media.”
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14. Protected Grievance or Actionable Gripe?
Whether the social media post was submitted during working hours
Whether comments relate to wages, benefits, performance, staffing
levels, or other terms and conditions of employment
Whether the social media activity appears to initiate, induce, or
prepare for group action (versus mere griping)
Whether the employee’s co-workers had access to the social media
postings
Whether co-workers responded to or otherwise participated in the
social media postings
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16. False Advertising: Business to Consumer
An advertisement is unfair/deceptive if:
The representation is likely to mislead the consumer
The consumer’s reaction to the representation is reasonable,
determined from the total impression the advertisement creates in
the mind of the consumer
The representation is material – that is, it is “likely to affect the
consumer’s conduct or decision with regard to a product or service”
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18. False Advertising: Business to Business
To establish a claim of false/misleading advertising:
The defendant made a false or misleading statement of fact about
its or plaintiff’s products or services
The false or misleading statement actually deceived or tended to
deceive a substantial portion of the intended audience
The statement is material in that it will likely influence the deceived
customer’s purchasing decision
The defendant has been or is likely to be injured as a result of the
false statement
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24. The FTC Endorsement Guides
Endorsements must be truthful and not misleading
If the advertiser doesn’t have proof that the endorser’s experience
represents what consumers will achieve by using the product, the
ad must clearly and conspicuously disclose the generally expected
results in the depicted circumstances
All material connections must be clearly and conspicuously
disclosed
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25. The FTC’s 2000 Dot Com Disclosures
Prominence
Presentation
Placement
Proximity
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30. Contests and Sweepstakes – Not Lotteries
Sweepstakes: prize giveaways where the winners are chosen
predominately by chance.
Contests: promotions in which prizes are awarded primarily on the
basis of skill or merit.
Lotteries: random drawings for prizes wherein participants have to
pay to play. A lottery has three elements: prize, chance, and
consideration. [ILLEGAL!]
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31. Sweepstakes Laws
Clear and conspicuous statements: “no purchase is necessary;” “a purchase will not
improve one’s chances of winning;” and “void where prohibited”
The method of entry, including a consideration-free method of entry that has an equal
chance with the purchase method of entry
Start / end dates
Eligibility requirements
Sponsor’s complete name and address
Description and approximate retail value of each prize, and the odds of winning each
prize
Manner of selection of winners and how/when winners will be notified
Where and when a list of winners can be obtained
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32. Contests Laws
Name and business address of the sponsor of the contest
The number of rounds or levels of the contest, the cost (if any) to enter each level, and
the maximum cost (if any) to enter all rounds
Whether subsequent rounds will be more difficult to solve, and how to participate
The identity or description of the judges and the method used in judging
How and when winners will be determined
The number of prizes, an accurate description of each prize, and the approximate retail
value of each prize
The geographic area of the contest
The start and end dates for entry
Where and when a list of winners can be obtained
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41. Vital Corporate Social Media Policy Provisions
Social Media Goals Register Social Media
Accounts in Company’s Name
Permission and Parameters
Ownership of Social Media
Monitoring
Accounts
Spokespersons
Disclosures/Disclaimers
Employee Participation
Endorsements
Confidential/Proprietary
Respect Copyrights and
Information
Intellectual Property Rights of
Use Privacy Settings Others
Nondisparagement and Disciplinary Action
Nondiscrimination
Security
Protected Activity
Employee Training
Personal Versus Official Use
Acknowledgment/Signature
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43. Stay Connected
Robert McHale, Esq.
Tel: (617) 306-2183
robert.mchale@rmchale.com
@rmchalelaw
Legal Disclaimer: This presentation should not be construed as legal advice or legal opinion on any specific
facts or circumstances. The contents are intended for general informational purposes only, and you are urged
rmchale.com to consult your own attorney concerning your situation and any specific legal questions you may have.