This legally focused MENGinar will educate you on the risks of using Social Media along with other digital businesses. It will provide ways to help highlight: What is social media law? What are the more common legal issues related to businesses using social media? How social media law can impact businesses? What can be done to minimize the risks of those potential legal problems related to using social media? Do the potential issues raised by using social media mean that it is better for my company to not use social media? Shawn Tuma is a partner at the law firm BrittonTuma, a full service boutique business law firm that helps clients with all civil matters, including a full range of transaction, litigation, technology, and general counseling services. Shawn’s own broad based experience centers on business, technology, civil litigation, intellectual property litigation, and a unique expertise with cutting-edge legal issues such as computer fraud, information security, and cyber and information law. Shawn is a frequent speaker on digital business risk issues such as computer fraud, data security, and social media law.

1. SOCIAL MEDIA LAW
Presented for
MENG
Marketing Executives Networking Group
It is Real and,Yes,
Really Can ImpactYour Business

2. 2www.brittontuma.com
Shawn Tuma, Partner
BrittonTuma
Shops at Legacy, Plano,TX
469.635.1335
stuma@brittontuma.com
@shawnetuma
blog: shawnetuma.com
web: brittontuma.com
ShawnTuma is a lawyer whose practice is focused on cutting-edge cyber and
information law and includes issues like social media and emerging
technology and helping businesses defend their data and intellectual
property against computer fraud, data breaches, hacking, corporate
espionage, and insider theft. Shawn stays very active in the cyber and
information law communities:
 Best Lawyers in Dallas 2014, D Magazine (Digital Information Law)
 Chair, Collin County Bar AssociationCivil Litigation & Appellate Section
 Council Member, State Bar ofTexas Computer &Technology Section
 College of the State Bar ofTexas
 Privacy and Data Security Committee of the State Bar ofTexas
 Litigation, Intellectual Property, and Business Sections of the State Bar ofTexas
 Information Security Committee of the Section on Science &Technology
Committee of the American Bar Association
 Social Media Committee of the American Bar Association
 NorthTexas Crime Commission,Cybercrime Committee
 International Association of Privacy Professionals
The information provided is for educational purposes only, does not constitute legal
advice, and no attorney-client relationship is created by this presentation.

3. 3www.brittontuma.com
I am a lawyer
 what I say today as well as the slide presentation are
for educational purposes only and not intended to
be legal advice and should not be relied on as such
 this does not create an attorney-client relationship

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5. 5
1. Can I be sued for [x, y, or z]?
2. Is the risk of using social media worth it?
www.brittontuma.com
Yes!
Law + Social Media = PeacefulCoexistence

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Today I want to:
 help find an acceptable balance
 educate you on risks of using social media, along with
other digital business risks
 show you some ways to help minimize those risks
 Remember: social media is a tool – what you say and
do is much like “real life”
 Use common sense!
 Of course use social media – but use it properly!
www.brittontuma.com

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WHAT IS
SOCIAL MEDIA LAW?

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Social Media Law:
The law that applies to and
governs the use of social media.
(was that all you really wanted to know?)
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Social Media Law:
 inherent risks
 natural tension between promoters v. risk
management in business
 BUT!!!
 I am “sold out” on social media and an avid
user … and I don’t want to get sued either …
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2 GeneralTypes of Law
 Codes: legislatures create specific laws to
address specific problems
 Common Law: judges look to general
principles of law and, by using reason,
apply those principles to resolve
previously unforeseen problems
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Legislatures want to keep up
 impossible
 speed technology is evolving
 speed culture and business environment changing
 legislature too slow
Example:
• Spring 2012 - big ruckus was prospective
employers asking for social media logins –
the massive public outcry made it such
that within months nobody in their right
mind would do that
• Aug 2014: 20+ state passed or pending
legislation prohibiting
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13. 13
Look to Common Law
 contract law
 intellectual property law
 torts – defamation
 regulatory law
 employment law
 evidence law
www.brittontuma.com

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You can’t protect against what you
don’t know, so let’s apply this “law
stuff” to the real world …
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Who uses social media for marketing?
 do you want to give your marketing efforts to
your competitor?
 who really owns the accounts?
 followers / connections?
 each service or site has a contract
 contract law
 Case Study: PhoneDog v. Kravitz
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“an ounce of prevention is worth a pound of cure”
 PhoneDog = employer; Kravitz = employee (product reviewer / blogger)
 Kravitz = @PhoneDog_Noah had 17,000 followers
 Kravitz resigned, refused to turn over hisTwitter account, changed handle
to @noahkravitz and grew to 24,000 followers
 PhoneDog sued (7/15/11), heavy litigation, settled (12/12) = 1.5 yrs of fees &
Kravitz still has @noahkravitz
 THETAKEAWAY: Every company needs a contractual agreement that
clearly states who owns social media accounts used on behalf of the
company. It is that simple. Such an agreement can usually be included in an
employee handbook, employment policies, or a social media policy.The
cost of such an agreement will likely be cheaper than the very first day of
litigation if a dispute arises over that issue.
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Who has trade secrets, confidential and
proprietary information?
 do you want to tell your competitors?
 customer / vendor lists
 who are you talking to or following?
 secret business alliances, strategies, plans
 business situational awareness
 intellectual property law
 Case Study: Geolocation data
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 2007 – fleet ofAH-64 Apache helicopters
 Soldiers’ photos had geotags with exact
coordinates
 Insurgents used geotag coordinates for a
mortar attack that destroyed 4
 US Military uses
 Malaysia Airlines Flight 17
 So do businesses!
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source: http://defensetech.org/2012/03/15/insurgents-used-cell-phone-geotags-to-destroy-ah-64s-in-iraq/

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Who wants to get sued?
 infringement of trademark
 right to publicity
 name, voice, signature, photo, likeness (statutory after death)
 common law while living if for value
 commercial v. educational or newsworthy
 audience picture v. company promo video
 infringement of copyright
 attribution isn’t enough
 DMCATakedown Request
 Google penalizes for too many
 must have a license or use creative commons
 intellectual property lawwww.brittontuma.com

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Copyright Example
www.brittontuma.com
Attribution: prthugp @ http://www.officialpsds.com/prthugp-Profile9747.html
License:
Creative Commons
Attribution 3.0

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Who wants to get sued some more?
 what you (and your employees) say can hurt you!
Case Study: Bland v. Roberts – “Like” = 1st Amendment
 tortious interference
 defamation (libel, slander, bus. defamation)
 false advertising & false warranties
 fraud & negligent misrepresentation
 online impersonation
 harassment and cyber-bullying
 “puffery” of facts
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Who wants to be investigated by the Feds?
 FTC – deceptive trade practices
 Investigated Hyundai for not disclosing incentives given to
bloggers for endorsements.
 Google (Fed. Ct. in Oracle v. Google)
 HHS & OCR – could have investigated hospital worker who
posted patient “PHI” on Facebook (“Funny, but this patient
came in to cure herVD and get birth control.”)
 SEC – false statements in raising funds (SEC v. Imperia Invest.
IBC) or insider information  “Board meeting. Good
numbers=Happy Board.” before official release
 regulatory law
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23. 24
Specific trouble spots for marketers?
 Giveaways and contests can be trouble for many
reasons – do not do them on social media
without having it thoroughly vetted
 some sites’TOS prohibit
 jurisdiction gambling and contest rules
 Example: Facebook’s PageTerms
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What if someone is talking bad
about your business on social
media?
 defamation rules apply online
 but …
 the “Streisand Effect”
 anti-SLAPP (Strategic LawsuitsAgainst
Public Participation)
 ≠ assign copyright of reviews
 ≠ charge $500 per bad review
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Guess what will be used against you?
 social media is evidence – very powerful evidence!
 electronically stored information (“ESI”) is becoming
the most useful form of evidence in virtually every
kind of lawsuit and investigation
 we now have complete records of 2-way
communication stream – like all calls recorded!
 you don’t “own” your tweets! (“If you post a tweet, just like
if you scream it out the window, there is no reasonable
expectation of privacy.” State of N.Y. v. Harris)
 4th Am. ≠ protect Facebook posts (U.S. v. Meregildon,
Aug. 10, 2012)
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27. 28www.brittontuma.com
• “The law has a right to every man’s evidence.”
• Courts look to social media for public posts, private
messages, “Likes”, etc.
• Club’s SM before Cowboys’ Josh Brent wreck killing Jerry Brown:
“I have 12 #Cowboys in theeee building!!!!!!!!!! #Privae” …
“These fools buying Ace on top of Ace!!!!!!!”
• Danielle Saxton’s Facebook “selfie” wearing stolen merchandise
– easy evidence!
• Daughter’s $80,000 Facebook “brag”
• If litigation is anticipated -
• cannot permanently delete account, may be able to “take down”
• cannot selectively delete posts

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MINIMIZING THE
RISKS OF SOCIAL
MEDIA IN BUSINESS

29. 30
• Monitor, Regulate & Archive SM
 Necessary if regulated industry
 finance, insurance, energy & utilities, healthcare,
government, legal
 Wise for others
• Do not delete if in litigation (archiving may
be an option)
• Document Retention Policy
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30. 31
In general you want to
 recognize and appreciate potential issues
 decide how to handle those issues
 educate your team on those issues
 collaborate and train on how to comply with and
resolve issues
 create and outline procedures for using social
media
 monitor (to some degree) to ensure compliance
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31. 32
Social media policies are a “must have”
 ounce of prevention: less than 1 day of litigation
 if have, must enforce
 trying to predict issues – but evolving – can’t get all
 contractually resolve issues such as ownership and
authority
 great opportunity to set rules and document expectations
 greater opportunity to explain and ensure understanding
of expectations
 put on notice of monitoring – and actually monitor!
 should address employment issues
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32. 33
Employment Issues
 using social media in hiring
 best to have set criteria with neutral third
party investigate for criteria
 not use to discriminate
 e.g., snooping to find race, gender, age, disability,
pregnancy
 e.g., search for candidates onTwitter where
disproportionate number of people <40 yrs. onTwitter,
may violate the Age Discrimination in EmploymentAct
 requesting social media login information
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33. 34
Employment Issues
 using personal social media during work
 can be prohibited
 may prohibit using or disclosing company IP for
personal SM
 may prohibit using company info for setting up
personal SM accounts
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34. 35
You need social media policies but the National
Labor Relations Board is making it difficult
 NLRB jurisdiction = impacts interstate commerce
 National Labor RelationsAct (NLRA) sec. 7 gives employees
right to engage in “concerted activities for the purpose of …
mutual aid and protection”
 NLRB finds illegal any policy provision that (a) restricts or (b)
an employee would reasonably construe to chill concerted
activities
 On 5/30/12 NLRB General Counsel issued its 3rd Report on
Social Media Policies in 1 year period (8/11 & 1/12)
 Has continued – with several since then
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Can you guess who the NLRB is pulling for?
 making it very difficult for businesses to protect
themselves
 social media policies must now be carefully tailored
to
 address unique business and legal needs of your business
 be enforceable and lawful in a court of law
 be legal in the eyes of the NLRB
 Examples of provisions found illegal by NLRB
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What is the NLRB really looking for?
 clarity and precision
 examples of do’s and don’ts that give
context and real-life meaning to the rules
www.brittontuma.com

41. 42
Cyber Insurance
 If you are doing anything in cyberspace, you need it.
Period.
 Most traditional insurance does not cover cyber-events,
even if you think it does (really!)
 Cyber-Insurance is relatively inexpensive
 Most policies come include a cyber-risk audit before the
policies are underwritten
 Policies can cover social media risk, computer fraud risk,
and data breach / hacking risk
www.brittontuma.com

42. 43www.brittontuma.com
 social media is wonderful!
 must find proper balance
 need a social media policy
 address unique business and legal needs of your business
 be enforceable and lawful in a court of law
 be legal in the eyes of the NLRB
 need to enforce social media policy
 need to spend time with employees to help them
understand and possibly collaborate on the rules
 need to look at cyber-insurance!

43. 44www.brittontuma.com