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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
How Does Social Media Intersect with the Law? rmchale.com
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 rmchale.com
Risk Areas1. Employee Monitoring, Screening and Discipline2. False Advertising3. Endorsements and Disclosures4. Social Media Contests and Sweepstakes5. Trademark Protections from Brandjacking and Cybersquatting rmchale.com
Social Media in the Workplace Social Media Background Checks (FCRA) Employee Discipline (NLRA) Employee Endorsements (FTC) Discrimination / Harassment Privacy rmchale.com
The FCRA is Real. So is FTC Scrutiny. rmchale.com
When the FTC Speaks, Spokeo Listens. rmchale.com
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.” rmchale.com
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 rmchale.com
False Advertising: Business to ConsumerAn 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” rmchale.com
False Advertising: Business to BusinessTo 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 rmchale.com
Be Careful with User Generated Content rmchale.com
The FTC Endorsement Guides & Dot Com Disclosures rmchale.com
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 rmchale.com
The FTC’s 2000 Dot Com Disclosures Prominence Presentation Placement Proximity rmchale.com
Social Media Contests and Sweepstakes rmchale.com
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!] rmchale.com
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 rmchale.com
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 rmchale.com
Legal Guidelines for Social Media Policies rmchale.com
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 rmchale.com
Stay Connected Robert McHale, Esq. Tel: (617) 306-2183 email@example.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.