
Here’s a recap for those of you who missed the SMCSTL panel on Privacy, Security and Legal Protection in social media. We had a great turnout and saw a lot of new faces come out to learn about their rights when it comes to social media. A huge thanks to the following panelists who enlightened us on the ever-evolving topic of privacy and social media, and also to our fellow board member Erin Eschen (@erine) for moderating this event.
The Panelists
Pete Salsich
Intellectual Property Litigator and Counselor, Entrepreneur, Founding Principal of The BrickHouse Law
@PeteSalsich | LinkedIn | Blog
Craig Moore
Litigation Attorney at Armstrong Teasdale LLP, Co-Chair of Social Media Practice Group
@CraigGMoore | @AT_Law | LinkedIn
Anthony Martin
Privacy Lawyer, Professor and Founder of RedPoint Privacy Advisors, a data protection firm
@AMPrivacy | LinkedIn | Blog
The Questions
Below is a summary of some of the night’s questions and answers based on my own notes, please note they are not verbatim. [All opinions are my own, and insert other legal disclaimers here
]
Erin: How much information is too much to share?
Anthony – noted that the decision begins with knowing what the application or site is going to do. The amount of info you give it should depend on what you know or think it will do with it.
Craig – mentioned that your first concern should be what you are doing with your information, not what they are doing with it.
Erin: What about photos and what your friends share about you in social media?
Anthony - responded by talking about how he can relate to this topic through experiences with his son and the social media photo sharing amongst his friends. He believes that Facebook wants you to be a personal archive and he’s not sure that’s what people want. However, as a side note, he mentioned that that if it’s a picture of Matt Ridings (@techguerilla) on a mechanical bull, then hell yes, he wants people to share it.
Pete – emphasized personal responsibility and making decisions about how you are sharing information about yourself. He noted that if you send a photo in email you might be able to trust that person doesn’t send it to anyone else. However, if you post photos anywhere else, then there is nothing you can do. If someone takes a picture of you and shares it, you might have more arguments on infringement of privacy, but if you personally put it up on the web then that is your problem.
Erin: Whose content is that if I take a photo or video and put it online for our company? What does the business need to do for protection?
Pete – A company owns the copyright for a finished video if an employee posted it on behalf of the company. It’s important to keep in mind that there are secondary rights for the people who are on the video. If you are using photos or video you have an obligation to get consent from the people who are in it. If you are using it for the purpose of making money off of it – to promote your brand or sell products – then it’s arguably commercial use.
Erin: My company has 8 blogs and 10 twitter accounts – what are some things that companies or individuals do to get in trouble that they should consider?
Craig – The important thing to keep in mind is that you can’t say something libel or defamatory on social media any more than you could off social media. You do have a right to offer opinions, opinions are not defamatory.
Anthony – Noted that the way privacy policies and TOS’s are crafted are often confusing to the end user. Feels that the legal community could work together to do better in this area.
Pete – Yep, there is a trend to try to cram all legality into the privacy policy. Had a conversation with someone in this room who bragged that they got all their privacy policy in one page in size 8 font. Regarding who owns content – Many times a TOS states that you. However if you host the content on their site, you may give us some of your rights in the TOS.
Question to the audience – How many of you have a social media policy for your business or clients?
[Only about 3 people in the audience raised their hands]
Erin: 20% of hiring managers routinely screen social media when looking at applicants and 30% admit to ruling someone out completely based on what they found in social media, is this okay?
Anthony - We’re able to make better employment decisions with better information, but the question is where do we draw that line?
Craig – case of drivers like UPS – If they see in your Facebook that you say you drink and get smashed every weekend an they hire you, and then you wreck a truck and it turns out you were drinking and they knew about your drinking habits, then they’re in trouble.
Erin E: How much does “all opinions and tweets are my own” on your social media profile protect you?
Pete – It doesn’t protect the speaker, but it protects the employer to an extent. You can’t sue the employer for something the employee said.
Question from the audience: What is the responsibility of employers to regulate what their employees are saying in social media to protect yourself from a lawsuit?
Craig (laughs) – Are you asking me as a defense or plaintiff attorney? As a Plaintiff I will say they should be actively monitoring it, from a Defense standpoint – maybe I don’t want to know what my employees are saying in social media.
Anthony - If a business is going to be in a lawsuit they are going to get into electronic evidence no matter what.
Pete – Made a comment regarding NDAs and social media. You could be violating an NDA just by announcing who you had lunch with via social media because NDA’s generally state you can share any info about employees, trade secrets, etc.
Craig – Employers need to be more responsible about how they present social media policy to employees if they have one. I heard a company once say “we want to train you on a social media policy that I knew none of you read” and I just wanted to die b/c you can’t set that expectation with your employees.
Pete – Shares a rule to live by: “Don’t say anything to anybody in social media that you wouldn’t want on the front page of the newspaper.”
Question from the audience: If there is no social media policy proper at your place, is it legal to fire them for something social media related?
Pete – With teachers you have layers of rules with teachers unions, etc. but without a policy you can still get fired for doing something wrong. Social media is just another way to act in the world, and there are plenty of things you can do in the world to get you fired.
Craig - If you’re posting “I believe in God” or “I want to vote Republican or Democrat” then it puts you in a class where you are pretty protected, but it depends on what you say. If I say my “boss is a mental patient”, then yes, you may be able to be fired.
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