Lathrop and Gage presentation - February Pro Lunch

Welcome!

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© 2014 Lathrop & Gage LLP

Top 10 Legal Pitfalls
for Content Generators
David Barnard ● David Waters

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David Barnard
Lathrop & Gage LLP

David Waters
Lathrop & Gage LLP

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Social Media in Litigation
List of 689 Social Media evidence cases (2010-2011)
http://x1discovery.com
MySpace (315 cases), Facebook (304), LinkedIn (39),
Twitter (30), Foursquare (1).
Criminal matters were most common case type, followed
by employment-related litigation, insurance
claims/personal injury, family law and general business
litigation (trademark infringement/libel/ unfair competition).
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Slander, Defamation and Libel
Slander, defamation, and libel
• When employee posts negative statements about
another employee, vendor, competitor, etc.

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Hostile Work Environment
Hostile Work Environment
• When postings contain sexually inappropriate, otherwise
discriminatory communications

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Healthcare Privacy and HIPAA

#plazafire

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HIPAA
Health Insurance Portability and
Accountability Act

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Who Must Comply with HIPAA?
“Covered Entities” must comply with the Privacy and Security Rules in HIPAA

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Healthcare Providers (Hospitals, Physicians, Dentists, Nursing Homes,
Pharmacies)
Health Plans (Health Insurance Companies, HMOs, Employer Group Plans)
Health Care Clearinghouses (Claims processors, billing services)
“Business Associates” (That perform services for Covered Entities that involve
the use or disclosure of Protected Health Information).

So, who is NOT covered by HIPAA?

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Generally, an Employer (even if a Covered Entity, when acting as an employer)
Your friends or colleagues at work.
News Reporters. Concerned Citizens.
Other privacy laws may be impacted, but not HIPAA. Limited Applicability.
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“Protected Health Information”
Individually Identifiable Information

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Information (including demographic information)
Created or received by a Covered Entity (Healthcare Provider, Health Plan,
Health Care Clearinghouse, Business Associate)
Relating to:
Past, Present, Future Physical or Mental Health Condition of an individual;
Provision of health care to an individual; or
Payment for provision of health care
Identifying the Individual or there is a reasonable basis to believe the
information could be used to identify the person.

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GINA
Genetic Information Nondiscrimination Act
Enforced by the Equal Employment Opportunity Commission.
Protects EMPLOYEES and JOB CANDIDATES from discrimination
based on their GENETIC INFORMATION or that of their family
members.
Illegal for an employer to DELIBERATELY ACQUIRE genetic
information about employees (e.g., ask about family medical history
on employment application).
Social Media creates more opportunities for genetic information to be
shared, opening the door to claims of employment discrimination.
INADVERTENTLY LEARNING of employee’s genetic information is
not illegal. Also, exception for COMMERCIALLY AND PUBLICLY
AVAILABLE information.

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Discrimination Claims
Discrimination Claims
• Comments about protected status can be proof of
discriminatory animus

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Insider Trading/Securities Fraud

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Trade Secrets
Trade secrets and intellectual property
disclosure/infringement
• Disclosure of certain of your trade secrets or IP can
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destroy (or at least erode) the “confidential” or protected
status of the information
Employee’s use of someone else’s IP may constitute
“infringement”
Proven by e-trail
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Ownership
Special risk for content providers that may use of multiple profiles or
platforms (the “business” and “personal”) for same or similar content.
Can a company cash in on, and claim ownership of, an employee’s social
media account, and if so, what does that mean for workers who are
increasingly posting to Twitter, Facebook and Google Plus during work
hours?
Figure out at the beginning of your relationship (whether on the employer
side, or the content provider side), who owns the contacts developed
through an employee’s use of social media.
Decide who gets to continue the account after the relationship ends.
No “bright line” test, but content providers should probably assume—absent
an agreement—that “followers” or contacts you make through your
professional networks/accounts belong to the business.
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Rogue Employees
Rogue employee/exemployee access
• Know who has access
• Coordinate with HR

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"If anything good has come of this, I hope it's that other
employees and employers out there can recognize the
importance of social media to companies and
individuals both. Good contracts and specific work
agreements are important, and the responsibility for
constructing them lies with both parties. Work it out
ahead of time so you can focus on doing good work
together -- that's the most important thing."
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Endorsements

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ENDORSEMENTS VS. “LIKES” OR RETWEETS.

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All are “one-click” solutions, so tempting to view them the same.
But, Likes and Retweets apply more to CONTENT: a photo, a shared article,
an observation, an announcement. They may have little to do with the person.
But LinkedIn Endorsements have EVERYTHING to do with the person, and
even more, a particular quality of that person or organization.

FEDERAL TRADE COMMISSION, 16 CFR PART 225

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“Use of Endorsements and Testimonials in Advertising.”
If you have employees saying great things about your company on their blogs,
social media accounts, etc., anywhere the relationship is not open and obvious,
there may be a need to disclose they are employees or are getting paid to write
the reviews, endorsements, or recommendations.

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FTC/Endorsement Rules
FTC/Endorsement Rules

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Effective 12/1/09
Intended to curb “deceptive advertising”
“Material connections” between blogger and company MUST
be disclosed

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Social Media Policies…
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On May 30, 2012, the NLRB issued NEW Guidelines on Social Media
Policies.

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The Memo discusses six relatively common policies that it found unlawful,
including:
“Don’t release confidential guest, team, or company information”
“Offensive, demeaning, abusive or inappropriate remarks are as out of
place online as offline…”
“Think carefully about “friending” co-workers”
“Don’t pick fights. Communicate in a professional tone.”

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The Memo is simply guidance, and the courts will have to sort out the
interplay between protected speech and good business practices.

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Tell Us How You Really Feel
Cisco job candidate offered job.
Candidate tweets ─ “Cisco just offered me a job! Now I have to weigh the utility of a
fatty paycheck against the daily commute to San Jose and hating the work.”
Cisco responds

Job offer . . . rescinded.

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Letting Your Lawyers Make You Look Like Morons

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Morons, cont.

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Morons, cont.

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David Barnard
Lathrop & Gage LLP
dbarnard@lathropgage.com
816.460.5869

David Waters
Lathrop & Gage LLP
dwaters@lathropgage.com
913.451.5112

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Lathrop and Gage presentation - February Pro Lunch

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