1. Social Media: Marketing and the Legal Risks Training Session One: The Social Media Playbook Matthew Spanovich & Eric Wiechman December 2, 2011 Spanovich & WiechmanDec 2011

2. Schedule of Proceedings Eric Wiechman – What is Social Media? – State of the Social Media – Effective Social Media Marketing WOMM (Word of Mouth Marketing) Marketing Conversation The C’s Benefits and Goals Comparing forms of Advertising Spanovich & Wiechman Dec 2011

3. Schedule of Proceedings, cont. Matthew Spanovich – The Legal Risks of Social Media Categorizing the Risk Defamation Privacy and Employment Communication Decency Act Developing a Social Media Policy Spanovich & Wiechman Dec 2011

4. What is Social Media? Forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content - Webster Dictionary Spanovich & Wiechman Dec 2011

6. State of Social Media Facebook- 800 Million Youtube- 3 Billion Twitter-200 Million Spanovich & Wiechman Dec 2011

9. Age Demographics of Social Media Millenials/Gen Y-ers Baby Boomers Spanovich & Wiechman Dec 2011

10. MONOLOGUE Spanovich & Wiechman Dec 2011 DIALOGUE

11. The C’s of Social Media Communicate Community Creative Competition Collaborate Spanovich & Wiechman Dec 2011

12. Word of Mouth Marketing: WOMM Buzz Marketing Viral Marketing Influencer Marketing Evangelist Marketing Stealth Marketing Spanovich & Wiechman Dec 2011

13. Benefits of Social Media Qualitative - Loyalty, Trust, Interaction, Brand Awareness Quantitative - Cost-Free Spanovich & Wiechman Dec 2011

14. Goals of Social Media Marketing Enable, Inspire, Influence Love or Hate Spanovich & Wiechman Dec 2011

15. Social Media vs. Other Forms “In many organizations, the corporate marketing function has lost budget, head count, influence, and confidence, resulting in strategic consequences that run deeper than many managers realize.” Sloan Management Review Spanovich & Wiechman Dec 2011

16. The Legal Risks of Social Media Categorize the Risk – First Party Liability: Personal Liability – Agency Superior Liability: Employees, agents, and co-brands – Secondary Liability: Customers and Users – *International Spanovich & Wiechman Dec 2011 (Davis Wright Tremaine LLP, 2011)

17. Action upon Categorization First Party: Immediately contact personal lawyer and, if applicable, inform employer Agency Superior: Notify superiors and HR Secondary: HR and PR Spanovich & Wiechman Dec 2011

18. First Party Liability Most common and most damaging to the individual Ex. Hospital employee in Dec 2009 resigned over tweet referring to care for Governor of Mississippi Sub-Categories: defamation, false advertising, invasion of privacy, and harassment Spanovich & Wiechman Dec 2011 (Burke & Goldstein, 2010)

19. Defamation Four Elements of Defamation – 1) A False Statement – 2) Published to 3 rd Party without privilege – 3) Fault amounting to at least negligence – 4) Causing special harm Court Rulings tend to be subjective Spanovich & Wiechman Dec 2011 (Blaine T. Bettinger)

20. Examples of Defamation Cases Spanovich & Wiechman Dec 2011 Horizon Realty also cited the following tweet from the same user:

21. Defamation Checklist  False Statement  Published to 3 rd Party  Fault or negligence  Special harm The judge dismissed with prejudice, citing that the tweets were too vague Spanovich & Wiechman Dec 2011 (Bettinger)

22. Privacy Laws Must consider all laws protecting individual privacy, including: health, financial, online, communication, education, and information privacy In court, public postings on public sites are not considered private – Exceptions: password protected site or if the individual uses security settings to prevent viewing Spanovich & Wiechman Dec 2011 Secured Communications Act (Saper)

23. Employment Laws Employer can monitor all work-issued equipment if it notifies employees beforehand If not, courts decipher when employee has a reasonable expectation for privacy Employers cannot hack into employee accounts to obtain password-protected materials under the Stored Communications Act Spanovich & Wiechman Dec 2011 (Elefant, p. 17)

24. Employers’ Rights Can check social media to verify information provided by a job applicant Can view social media for postings of harassment between employees Controversy: Viewing social media to determine character of candidate 29 states have lifestyle statutes, including WI Spanovich & Wiechman Dec 2011 (Saper) (Elefant, p. 15) (Burke & Roth, 2011)

25. Communications Decency Act Ruled unconstitutional in 1996 Section 230 – No provider or user of a social media platform can be treated as the publisher of any info provided by another user or provider Section 230 does not protect against Federal criminal or intellectual property claims Spanovich & Wiechman Dec 2011 (Bettinger) (Steinman & Hawkins, p. 8)

26. Social Media Policy Last line of defense Explicitly state in handbook – Employee activity vs. Private activity – Monitoring approach Four horsemen of social media – Breach of Confidentiality, Defamation, ‘False and Misleading’, and Infringement Oversight system Spanovich & Wiechman Dec 2011 (Davis Wright Tremaine LLP, 2011)

27. Conclusions & Recommendations 4 recommendations – 1)Co’s should educate employees in the C’s and train to engage in consumer-driven dialogue – 2)Co’s should provide training for employees in social media law – 3)All co’s should immediately develop social media policies – 4)US courts should find similar ground on rulings Spanovich & Wiechman Dec 2011

28. Thank You Thank you for your time God’s blessings in your future careers Handout Questions? Spanovich & Wiechman Dec 2011