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Social Media: Legal & Business IssuesMay 14, 2010Jeff Johnson, Marsh, Inc. 3131 E Camelback Road, Suite 400, Phoenix, AZ 85016 602-337-6226 ~ jeffrey.t.johnson@marsh.com Arizona Society for Healthcare Risk ManagementQuarterly MeetingCasa Grande, AZ

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495 connections 174 friends 2,600 followers 495, 174, 2,600 Social Media Revolution

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Web 2.0 & Social MediaThe Big Three: LinkedIn, Facebook, TwitterUse of Social Media: Legal & Business ConsiderationsSocial Website Dangers for Unwary EmployersWhats Next?

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Web 2.0 & Social Media

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Web 2.0 & Social Media OverwhelmWHY RIDE THE WAVE?

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Self-Directed Learning & Knowledge ManagementIn the knowledge economy learning is work and your work is learning An organizations ability to learn and translate that learning into action is the ultimate competitive business advantage Jack Welch Knowledge has become the key economic resource and the dominantand perhaps even the onlysource of competitive advantage. Peter Drucker

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CollaborationTransparencyOpen SourceConnectionFrom Wikipedia: File:Web 2.0 Map.svg

SharingCommunication

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Web 2.0 TodayApps that facilitate info sharing, interoperability, user-centered design and collaboration on the world wide web.Cumulative changes in the way developers and end users use the web.

Transforming people from content consumers to content producers.Social Networking: LinkedIn, FaceBook Micro-blogging: Twitter Blogs: Technorati, WordPress, Blogger, BlogspotPhotos & Images: Flickr, PicasaRSS & Newsreaders, GoogleReader Wikis: WikipediaPodcasts: Podcast.com, Videos: Audacity, YouTube, Hulu Avatars: Second LifeBookmark storage: Digg, Diigo, Delicious, StumbleUponBrowsers: FireFox, Safari, ChromeVideo Conferencing: SkypePresentation sharing: Slideshare Social Platform: NingPolling: Survey Monkey, PollDaddySynchronous webinar tools: GoToMeeting, Eluminate Course Management Systems: MoodleE-Learning development tools: Camtasia, Articulate,

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Social Media:Highly interactive technology tools Many-to-ManyOnline communitiesFree, easy, funContent producersNew, more efficient way to communicate Transforming people from content consumers to content producers.Click here for Slideshare on Community The Real Power of Social Media

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Strong Ties - Dunbar's number150

Theoretical cognitive limit of number of people we can maintain stable social relationships withRelationships where one knows who each person is, and how each person relates to every other person

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Weak Ties Have Strength

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BlogsWeb-log" Commentary, descriptions of events, graphics, and video. Entries in reverse-chronological order Standard source of news and info77 Million+ Americans visit blogs346 Million blog readers worldwideHow to blog: Wordpress, BloggerWho to follow: TechnoratiHow to organize: Google Reader, RSS19 Blogs You Should Bookmark Right Now

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Social Media and HealthcareMedical advice vs. medical information Engaging e-patientsConvergence with personal health recordsHealth 2.0Social media for providersHospital Social Media Network ListUS Hospitals that use social networking tools, by stateSocial media resources for health care professionalsArticle: Social Media in Health Care: Barriers and Future Trends

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Social Media ResourcesSocial Media Clubs Local Face to Face meetingsSmartBrief on Social Media E-zineSocial Media Academy Online Master Certificate ClassesSocialnomics Social Media Blog

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The Big Three: LinkedIn, FaceBook, TwitterPortions of this section were contributed by Sandra Masters

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LinkedIn Facts & IssuesFACTS:Business-orientedsocial networking site Launched in May 200365 million registered users More than 200 countries / territories worldwideA new member joins LinkedIn every second50% of members are outside the U.S.

ISSUES:Recommendations how should companies use them for applicantsAuthentication of usersTo be or not to be a LION

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Facebook Facts & IssuesFACTS:Launched February 2004More than 400 million active users50% of active users log on to Facebook dailyAverage user has 130 friendsPeople spend > 500 billion minutes / month on FBMore than 25 billion pieces of content Like buttons spreading across internetUser set their own privacy settings and choose who can see what parts of their profile.Need 25 fans to get vanity URL ISSUES:User privacyIntellectual property rightsTerms of useData miningInability to voluntarily terminate accounts

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Twitter FactsFascinating real-time insight into hot topics of the dayHuge conversation on any topic imaginable

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Twitter IssuesISSUES:Breaking news stories by eyewitnessesFreedom of speechTweet upsTwitter impostersCharacter limits for handle and profile nameDelay in updating hard to find accountsSelf-help customer serviceWill hashtags prompt keyword-like trademark infringement lawsuits?

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the Ultimate Convergent Tool

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Twitter spawns more applications:

Twirl & Tweetdeck TwollowTweetchatPower Twitter & TweetieTweetlaterTwitPicTwitterBerry & Tiny TwitterTwitterfon & TwitterficYour Twitter KarmaMy TweepleTwitterFeedTwitterpacksQwitterTweetstalkTwitteratiTwitterfall Website that explains and gives ratings to all these twitter apps: www.twittereye.com

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Password TipsInclude caps, numbers and symbolsJtjMarsh25!Change password regularlykeypass.infoFree password generatorEvernoteFree native encryptionFirefox master password

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Use of Social Media:Legal and Business Considerations

Portions of this section were contributed by Melissa Krasnow, Dorsey & Whitney LLP

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Privacy Errors and omissions Security Protecting proprietary information Transparency LawsuitsSocial Media Lawsuits: Your Posts and Pics Can Screw You by Jeff LouisWorkforce Darwinism by Adam Singer

Social Media involvement by your companyStart by asking these questions:

Will your company participate? Which employees have an appropriate business use for social media? Can only certain employees use these tools during business hours? To what extent will you monitor employee use, and how? How would you prefer an employee mention your company on their personal sites? You will need a clear company philosophy defining your companys attitudes toward social networking. You should also make it clear whether employees are allowed to identify themselves as representatives of the company on their personal social networks. Social Media Issues:

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Company Social Media PoliciesPersonal liability for contentDisclaimers are advisable, but not a shield from liabilityDo not disclose company confidential or financial informationFollow established company guidelines, policies and codes (e.g., code of conduct / ethics, etc.)Often not publicly availableSome common elements of social media policies:Identify yourself and make it clear when you are speaking on behalf of or about the companyEmployee versus individual capacity (e.g., are any employees executive officers?) LiabilitySeek advice from the legal department or management when necessary (e.g., permission to comment if the content is work related)Information that can be disclosedInformation should be accurate

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Should I have a Social Media policy?ABC Company Example Social Media Policy No access to social/web networking sites or blogs using company-provided equipment (computers, cell phones, etc.)Consider blocking access to the well-known accountsWho is blocked now at work? YouTube?Employees may not access social/web networking sites and may not blog during work hoursEmployees who access social/web networking sites or who blog during non-work hours, using non-work computers, may not:disclose or discuss confidential or proprietary information (include definition)disclose or discuss information regarding the companys clients or business partners, or details of a particular client engagementuse the companys trademarks, logo, and any copyright protected material of the county in the blog, posting, etc.promote competitors goods, services, products, etc.Employees may not:Post any material or content that is discriminatory, harassing, etc. or Engage in any activity that reflects or may reflect negatively on the company, its affiliates, employees, or clients/customersEmployees who access social/web networking sites or who blog during non-work hours, using non-work computers, must:Remain respectful of the company, its products/services and clients/customers, affiliates, vendors and suppliers, competitors (and competitors products and services).Employees must:Make clear in any post or blog that the views and opinions they express about work-related matters:Are their own,Have not been reviewed or approved by their employer, andDo not necessarily represent the views and opinions of their employer.Employees should expect that any information created, transmitted, downloaded, exchanged or discussed on social networking sites and/or blogs may be accessed by the company at any time without prior noticeConsider your companys culture, and history with technologyDo you have policies in place already that address this issue?Anti-harassmentNon-disparagementNo divulging company secrets/proprietary informationComputer use policyDoes your company have an intranet or other company-sponsored forum where employees may post comments?Social Media Policy DatabaseKaiser example SM Policy

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Corporate and Securities Law RequirementsCompany agreementsAntifraud provisions of the Securities Exchange Act of 1934Regulation Fair DisclosureSEC Release on Use of Company Web SitesRule 14a-17Stock exchange requirements

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Federal Trade Commission DevelopmentsFTC Guides Concerning the Use of Endorsements and Testimonials in AdvertisingAdvertiser liability forFalse or unsubstantiated statements made through endorsementsFor failure to fully disclose material connection between them and the endorser that might materially affect the weight or credibility of the endorsementEndorser liability for statements made in the course of their endorsements (e.g., bloggers)

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Other Regulators of Social MediaFinancial Industry Regulatory AuthorityGuidance on Blogs and Social Networking Web SitesU.S. Food and Drug AdministrationPublic Hearing on Promotion of FDA-Regulated Medical Products Using the Internet and Social Media Tools

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Overall Recommendations: Company Use of Social MediaRegister key trademarks as Twitter usernames and Facebook vanity URLsMonitor social mediaConsider all disciplines / areas affected by social mediaReview company procedures and revise or establish new policies as neededMake sure company policies are consistent and integratedTrain marketing, customer service, human resources, investor relations, employees and others who handle companys social media

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Social Website Dangers for Unwary Employers

Portions of this section were contributed by Tamara E. Russell, Barran Liebman LLP

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What if you saw these photos of an applicant on the internet?

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Reasons why an employer may want to monitor employee internet activityPossible liability for:torts committed by employeedefamation of company, employees, constituentsNegligenceharassment or discriminationPossible intellectual property infringementPossible dissemination of trade secrets or confidential or proprietary information

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Legal risks of doing a background check on the internetPotential violation of state or federal discrimination lawsFair Credit Reporting ActViolate terms of service of websiteFederal Computer Fraud and Abuse ActFederal Stored Communications ActCommon law privacy claims

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If you MUST use the internet to research a candidateAsk: Is the information I am going to learn a valid predictor of job performance?Consider modifying written authorizations for background checks to include reference to internet searchesConsider researching after a conditional job offer is madeUpdate your policies:Specify who will do the internet background checks Carefully consider criteria about how and when to use the internet in evaluating applicantsSpecify that no one is authorized to use the internet to research a co-worker, applicant, former worker, etc.Clarify and identify who is authorized to give referrals, if anyShould you be wary of the LinkedIn recommendation?

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Your employee posted a bad, bad thing on the internet, now what?

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Social Website Dangers for Unwary EmployersPietrylo v. Hillstone Restaurant Group (2009)Plaintiff created a group on MySpace called The Spec-Tator, where employees by invitation only could engage in shit talking about the restaurant and its managersSite contained ethnic slurs and derogatory comments about guests and managers and discussions about drug use and sexual actsA non-manager employee joined and showed content to a manager, who used non-manager employees account name and password to access the account and show it to other managersPlaintiff and another co-worker were firedPlaintiff claimed the termination violated federal and state statutes that prohibit knowing and unauthorized access to stored electronic information; violations of privacy rights; and unlawful terminationTried to jury in June 2009Verdict for plaintiff violation of Federal Stored Communications ActDamages for plaintiff were nominal, but plaintiffs counsel applied for and will likely receive close to $125,000 in attorney fees

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Discharging employees for internet postingsSafe cases:When the content of the postingViolates the lawDiscloses trade secrets or other company confidential or proprietary informationWhen the content was posted during work hours, and violates the companys policy on use of the internetMore Difficult cases:When the employee says disparaging, but not unlawful, things about:The company or it products or servicesCo-workers, the work environment, etc.

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Discharging employees for internet postings when not to dischargeWhen employees comments are protected by law:Federal and state anti-discrimination laws, including wage and hour lawsNLRA: Section 7 Constitutional laws applicable to state/federal employees (1st and 4th Amendments)Other laws that may protect employee postings/blogging:Electronic Communications Privacy Act of 1986 (18 USC 2510 et seq.)State laws regarding lifestyle statutes

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Insurance coverages for Social Media loss exposuresInsurance Coverages:Professional liability policyInformation Security policyTech Errors & Omissions policyGeneral liability policyUmbrella / Excess liability policyEmployment Practices Liability InsuranceDirectors & Officers Liability Insurance

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Whats NextNext Generation Mobile Devices - iPadMore AppsGeolocation based services - FoursquareVideo calling on cell phones

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Closing:Challenge:LinkedIn: build profile, get connections, join groupsFacebook: check privacy settings, have fun with itTwitter: try a search, set up basic account, tweet, follow peopleReview your companys Social Media policy is there one?Any questions?Review handout Marsh (3/2/10) webinar replay: The New World of Social Media: Business and Legal RisksGo to Slideshare.net to view this presentation:http://www.slideshare.net/jtjmarsh/social-media-legal-business-issues

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www.marsh.comThe information contained in this presentation is based on sources we believe reliable, but we do not guarantee its accuracy. This information provides only a general overview of subjects covered, is not intended to be taken as advice regarding any individual situation or as legal, tax, or accounting advice and should not be relied upon as such. Recipients of this presentation / publication should consult their own insurance, legal, and other advisors regarding specific coverage and other issues.

****Sandy Masters:The green circles are companies that were bought by other companies (e.g. Blogger bought by Google, etc.). The Xs are no longer in business. What is most interesting about the graphic is that when the graphic was made around 2006, the Big 3 did not even make the list! Here is the complete graphic with proper attribution:http://www.flickr.com/photos/stabilo-boss/101793494/**Highly interactive technology tools that leverage the human desire to interact with othersMany to ManyUsed to be One to Many (email)Now: LinkedIn,FaceBook, Twitter, YouTubeMore efficient way to share infoFree, easy, funWe become content producersFeeds creativity urgeCompetitive# connections, friends, followersNew way for organizations to communicate with employees, patients, partners, and stakeholdersOnline communities that allow people to get information, opinions, solutions, and ratings directly from each other rather than from organizations

Users spend more time on social media sites than email since February 2009Facebook posted 69% / Twitter posted 45% increase in year-over-year gains in user activity Global traffic to social networking sites totaled 313,690 million visitors. The total minutes spent on social networks monthly saw a more than 100% increase over the same time last year, Average time per person spent on social networks to over 6 hours per month.46% of American adult Internet users use a social media site like Facebook, LinkedIn or MySpace65% of American teen Internet users use social media

**Managing a conversationMedical advice vs. medical informationEngaging e-patientsEquipped, enabled, empowered, and engaged in their health care decisionsProvide feedback to healthcare providerConvergence with personal health recordsAs the similarities between online patient communities (http://www.patientslikeme.comandhttp://curetogether.com) and PHRs begins to blur, will PHR information from providers be shared with online communities with the appropriate privacy settings so that the user can decide what to share? Health 2.0User-generated aspects of Web2.0 within health care Not directly interacting with the mainstream health care systema) search, b) communities, c) tools for individual and group consumer use Social media for providersFew health care professionals see the value in social networking with other physicians, or they are not convinced that the benefits are worth the time. Although well over 90% of physicians use the Internet for continuing education, medical reference and e-mail with colleagues, taking theleap into online communities is less common. Article: Social Media in Health Care: Barriers and Future Trends

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Personal business network job security activate it when looking for new job or career change Reconnect Paul Keeler Connect after network / meet someone invite them to connect Connections / connections of connections Home page Vanity URL Profile page Who viewed your profile last

*Launched February 2004More than 400 million active users50% of active users log on to Facebook dailyAverage user has 130 friendsPeople spend > 500 billion minutes/ month on FBAverage user creates 70 pieces of content / monthMore than 25 billion pieces of content (web links, news stories, blog posts, notes, photo albums, etc.) shared each month.Users create profiles / photos / lists of personal interests / contact info / other personal information. Communicating through private or public messages or a chat feature. Users create / join interest groups and "like pages" Like buttons spreading across internetUser set their own privacy settings and choose who can see what parts of their profile.Need 25 fans to get vanity URL

Demo JTJ FB Site:

Started FB 2 years ago Old classmates, work friends Show Brett FB garage door thread Show privacy settings Set up rings of security Vanity URL go to username Chat O/s Friend requests who do you accept?*Get cell phone picof me in front of screen,

Send MMS text to Twitpic: Social Media presentaton at Azshrm

ADHD: Attention deficit hyperactivity disorder.

ADHD is a problem with inattentiveness, over-activity, impulsivity, or a combination. For these problems to be diagnosed as ADHD, they must be out of the normal range for the child's age and development **** Giant conversation, access peoples thoughts on topics Show Home Show Profile link to blog Show Followers follow someone back Show Following Hash tags # - do search Twellow show non-mutuals Background discuss 1600x1200 size**Make sure you give proper attribution for the content (e.g. Slide 32 I believe the material comes from the IIABA ACT Social Media Policy for Agencies.) Company policiesReview existing company policiesAre there controls and procedures for monitoring?Company agreementsAntifraud provisions of the Securities Exchange Act of 1934Regulation FD (Fair Disclosure)SEC Release on Use of Company Web SitesRule 14a-17Stock exchange requirements

FTC Guides Concerning the Use of Endorsements and Testimonials in AdvertisingAdvertiser liability forFalse or unsubstantiated statements made through endorsementsFor failure to fully disclose material connection between them and the endorser that might materially affect the weight or credibility of the endorsement (e.g., advertiser providing endorser with free products, employee of advertiser, etc.)Endorser liability for statements made in the course of their endorsements (e.g., bloggers)

Potential violation of state or federal discrimination lawsWhy? Because youre asking questions that you wouldnt otherwise ask during an interview.Are you basing your decision to hire, or not hire, someone based on what you see (even inadvertently)?Fair Credit Reporting Act?Violate terms of service of website?Federal Computer Fraud and Abuse Act?Federal Stored Communications Act?Common law privacy claims?

Ask: Is the information I am going to learn a valid predictor of job performance?Consider modifying written authorizations for background checks to include reference to internet searchesConsider researching after a conditional job offer is madeIf you find something negative, give the applicant time to correct or explainWhen employees comments are protected by law:Federal and state anti-discrimination laws, including wage and hour lawsNLRA: Section 7 Protects employees right to form, join and assist labor organizations, engage in collective bargaining, and to engage in other concerted activities for mutual aid and protectionConstitutional laws applicable to state/federal employees (1st and 4th Amendments)Other laws that may protect employee postings/bloggingElectronic Communications Privacy Act of 1986 (18 USC 2510 et seq.)State laws regarding lifestyle statutes (not OR or WA but yes in California)

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