Business Owners: Document Management and Retention Policy

It is clear from the prior posts that lawyers are aware that there is a lot of evidence to be discovered from social media.  However, what does this mean the operations of a business?  In terms of the bottom line discovery will only complicate your day-to-day operations as you search for some blog post you put up two years ago.  Your social media should be added to the document management and retention policy, but it should be done efficiently as to minimize any future compliance or litigation action.

Consider this, that in 2010 FINRA issued guidance for blogs and social networking sites, and set forth the record keeping responsibilities in the financial broker-dealer business.

Every firm that intends to communicate, or permit its associated persons to communicate, through social media sites must first ensure that it can retain records of those communications as required by Rules 17a-3 ad 17a-4 under the Securities Exchange Act of 1934 and NASD Rule 3110.

Why Have a Document Management and Retention Policy?

In general, you should always have a way of finding your files.  It will not only help comply with discovery requests, but for yourself it will help you find things for things such as regulator and tax requirements.  Not only will lawyers be grateful you can find your own files, but accountants and various consultants find it helpful as well.

Therefore, your business records policy should be aimed at three goals:

  1. Preserving until end of usefulness (both for legal and business reasons);
  2. A systematic approach to destruction, which explains why documents no longer exist;
  3. Limiting the number of areas that a discovery request will force you to search.

So basically, in your policy you have defined time, space, and existence.  It’s like having your own document universe where you get to control the rules.  In terms of legal considerations, and an attorney can help you with this part of the policy, but consider the following:

  1. litigation hold procedure if you anticipate any litigation or government investigation;
  2. how to handle the portability and backing up of data; and
  3. how to control non-company devices that access and use company data.

Incorporating Social Media

Now factoring in social media, you can kind of thing of it as it’s own galaxy in your document retention universe.  Due to its nature, and people’s perception of it you will have to a) think about how you want to archive it and b) train people to get used to organizing it.

As mentioned in the prior post you can download your Facebook data and get all your tweets in excel format.  For blog posts it depends on what service you are using, but some give you the option of backing up your blog.  You should also consider if you write in MS Word to draft the posts before hand of saving it in that format as well.

Finally, for your own sake and your lawyer’s sake be sure to digitally timestamp and signature the files.  This goes to authenticity of the evidence for a trial.  In addition, be sure to try and keep social media preserved in their native format.  Thus things like video or Flash files should be kept safe an the ability to replay is crucial because some regulatory situations will NOT accept screenshots.  Basically, you need to prove the exact contents and the manner it interacts with a user on any given date.

Training and Responding

Watch how people connected you talk about your products and services. Make sure employees and paid bloggers disclose anything you gave them in connection with touting your business's products and services.

Once you have set-up a document management and retention policy, concerning social media.  You have to train your employees to follow it.  It will give weight and credibility to why certain documents exist and others do not.  In terms of social media, when people use it they kind of think that what they post will not remain there and is only a flight of fancy.  So you are going to have to train against that mentality, as well as that social media posts are for company purposes and are a part of the company.  Followed by the fact that you will have to archive it like a library and you can see that training on social media retention is a little bit more complex.

If litigation does come knocking on your door, an attorney can help you strategize with a proper response.  Now that you have an efficient and searchable document management system it will be less of a nightmare.

Final Points: Centralize and Use Software

With social media and document retention centrality of the data/documents becomes a key issue.  Archiving and housing the data in all different manners and places is a real headache to sort later.  Put in the effort to centralize and organize in the beginning.  Lastly, while your business is small consider scalability of your document management system as it grows.   You may want to consider the use of specialized software.

As always if you like this post or any of my other series please Subscribe to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com or leave a message at 808-944-8400.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Ethics and the Collecting of Social Media Evidence

Sorry, non-lawyers, today’s post is another legalese fest.  Tune in next week, and I should have some general thoughts for you on what social media as evidence means to you in the grand scheme of things of policies and procedures.

So from the previous post, it is clear that there is a lot possible uses for social media data to use against your opponent.   However, how do you get to it?  Before I discuss any collection of the data I would like to briefly mention legal ethics.

Ethics and Rules

You probably already know all about the Hawaii Rules of Professional Conduct, so I am not going to take up your precious blog reading time with going over them.  Just consider these rules when trying to investigate (pre-litigation and discovery phase) another party’s social media prescence.

Some HRPC Rules to Think about in the Realm of Social Media as Evidence:

  • Rule 8.4 (c ) – engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
  • Rule 4.1(a) – make a false statement of material fact or law to a third person; or  (so no posing as a fake person to friend someone on Facebook)
  • Rule 5.3(b) – A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyers; and
  • (c) A lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved[.] (therefore, no lawyer’s employee masking as another person to friend an opponent via Facebook).

The New York State Bar has a good opinion letter summarizing the situation.  You can read it here.  Just remember that Rules of Professional Conduct have variations from state-to-state.

Trying to Get to the Evidence

Once you figure out what you want it may be difficult to get at.  Subpoenaing the corporate entities that provide the social media sergice is unlikely to yield results.  There is already case law that states the private-message function of Facebook is no different than e-mail and that the sites do not have to produce the messages.  In addition, the Stored Communications Act may prohibit such action.

So this means you will have to go the discovery route and get the opponent to produce it through the process.  In terms of Facebook, it is really simple to do.  There is currently an option where the user can download all their data onto their hard drive.  If you go to “Account Settings” there is a small option link that says “Download a copy of your Facebook data.”  Just follow the instructions and you have your data.  The simplicity of it all negates any response that the act would be overly burdensome.  Twitter is not as convenient, but there is a way to get all your updates in a file and then presented in an Excel spreadsheet.  If you want know more about that visit this link.

Consider using a social media release document (like the way doctor’s use a medical release form).   You can then take that signed release and present it to the social media giants, but the response is dependent on the turnaround time of large corporate entities.  If that does not seemed to be a good option there is finally the time-consuming processes of screen capping, pdfing, printing, and/or videoing the data.

Finally, remember if your opponent’s social media information is discoverable that means so is your client’s stuff.  So take the time and counsel your client about the matters to avoid spoliation claims.

Anyway, that’s it for today, and in general for social media as evidence.  I will touch upon from the business owner’s/client’s perspective about what this means for their social media and electronic document retention policies and procedures.

As always if you like this post or any of my other series please Subscribe to this blawg to receive updates to your e-mail.  In addition, follow me on Twitter @Rkhewesq and Like Me on Facebook under Ryan K. Hew.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Civil Beat is reporting that Chief Judge Susan Oki Mollway is allowing them to live-blog during the Aloun Farms trial, which starts Wednesday.  In the Aloun Farms case the prosecution accuses the owners of the Farms of keeping numerous Thai immigrants as indentured servants.  The case is one of two major human-trafficking cases this year in Hawaii.
Judge Mollway stated that this is not a change in court policy and only applies to this case.  However, if Civil Beat lives up to its name and reputation (for investigative and good journalistic practices) it may lead a step toward live-blogging and other social media use in the courtroom by convincing other judges that this is a good thing for justice.  More exposure plus utilizing a form of communication that has been widely adopted for business and social purposes puts the spotlight on the justice system, which needs to correct the information gap that exists in society.

I will temper my foregoing enthusiasm with the following comment:  information technology is a good thing to share information with society as a whole, the justice system should not be driven to open the floodgates and allow all manner of social media to be used in court.  For example, allowing jurors to Tweet and Facebook post is still a very bad thing.   However, transparency and informative acts via social media that maintain and that do not dilute the fairness of trial should always be welcomed.

So way to go Civil Beat and great decision Judge Mollway.

For Civil Beat’s article and their letter requesting social media access click here.

In the last post I talked about using social media as evidence and its legal relevancy to the litigation process.  Today’s post will be full of legalese, but my blawg is designed to help entrepreneurs of all types and that includes my fellow solopreneurs and small law firm attorneys.  As always, I will be discussing today’s subject in general and informative terms, and any procedural stuff will be with respect to Federal Rules.

Therefore, if you are a non-lawyer feel free to stick around, but today’s information is geared to others in the legal profession.  I thank you for stopping by and I will soon be getting back to some relevant posts to general small business situations.  However, before you go be aware that there are certain ethical rules that lawyers and those attached to them must follow.  For example, a lawyer cannot pose as a fictitious person and friend you on Facebook to get your information.

That being said just remember you should always be guarded about what you put out for the public using social media. Have a review process and if you have questions feel free to check my earlier posts on Social Media Policy.

Areas of the Law and Social Media as Evidence

Social media evidence has found a place in criminal and divorce (especially, with the flirtations that go back and forth between people).  It also has great use with corporate and employment law. Social media is good for providing alibis for criminal proceedings, discrediting a witness, and investigating people that are a part of the case.

In terms of torts, corporate blogs and statements put out by employees are great for products liability and personal injury situations.  While disputes of discrimination, emotional distress, and workers’ compensation fraud cases are backed up with Facebook pictures and Twitter posts.  Many bloggers use pictures, clips, and text freely from IP covered sources.

Some cases to consider:

  • EEOC v. Simple Storage Mgmt (2010) – refuting a claim of emotional distress from discriminatory conduct
  • TEKsystems, Inc. v. Hammernick (2010) – where plaintiff alleges that defendants violated a non-solicit agreement via their LinkedIn account

When to Gather Evidence

Consider poking around early.  If  you think your client may be sued or wants to sue someone else see what the opposing side has already put out there.  Basically, find out what you freely can about your opponent.  If they regularly use social media, consider it an opportunity to get information on them for free.  Once litigation commences, posts get deleted, privacy settings get set to maximum, and the ease of just screen-capping or printing a webpage is gone.

The flip side is that once discovery commences you will be allowed to use more formal methods to try and compel social media evidence.  Some ideas on the procedural formalities:

  • Interrogatories – should be used to identify the opponent’s screen or avatar names and the underlying social media account that is connected to each of those names;
  • Requests for production – should seek blog entries and postings, and if you can, use the date and timestamp connect to them;
  • Requests for admission – these should then be designed to backup and authenticate any such information gathered.

A Rule 26(f) conference should lay out the ground rules for social media production.

Defending Your Use of Social Media as Evidence

Watch how people connected you talk about your products and services. Make sure employees and paid bloggers disclose anything you gave them in connection with touting your business's products and services.

Be prepared to defend all of that valuable evidence that you have discovered.  I discussed relevancy last week, but also hearsay and authentication enter into the equation.  Normally, it is sufficient that the witness who has personal knowledge that the evidence is in fact what it is purported to be.  Courts have accepted that website printouts need not be authenticated by the original poster or the site’s owner, but by an attorney that testified that they visited the site, recognized it as opposing party’s, and printed the screen. (Jarritos, Inc. v. Los Jarritos)(2007)

In general, for authentication issues, ask yourself the following two questions:

  1. Whether the exhibit is really a printout from the site you are claiming it to be from?
  2. And whether the printout can be satisfactorily shown to have arisen from the where you are claiming it came from?

For a more in-depth look at authentication of social media the ABA has provided an excellent article on the matter written by David I. Schoen and can be found here.

As always if you like this post or any of my other series please Subscribe to this blawg to receive updates to your e-mail.  In addition, follow me on Twitter @Rkhewesq and Like Me on Facebook under Ryan K. Hew.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

Next time I will continue looking at other issues of using social media as evidence.  Namely, collecting and then preserving it.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

I was fortunate enough to be able to attend Hawaii Business Magazine’s SmallBiz Lunch and Learn: Leveraging Technology and Social Media to Grow Your Business.

It was a great event and I was able to learn some great advice and thought of some good ideas.  The experts that had on had were as follows: 1) Roxanne Darling of Bare Feet Studios and the Founder of Social Media Club; 2) Cyrus Driver, VP of Oceanic Time Warner Cable Business Class; and 3) Bernard Uy Co-Founder of Wall-to-Wall Studios.

This is NOT a Social Media and the Law post.  It is a post on some of the nuggets of practical wisdom that I gathered from the lunch and would like to share.  I also feel this gives you some of that business perspective I was mention in my posts as a JD who has his MBA.

They are the following, in no particular order of priority:

  • Thanks to social media EVERY business is a technology business, you will use it some aspect;
  • always thanks to social media your customers OWN your brand – they have become self-publishers;
  • because of the prior two points, LISTEN to your customers;
  • in fact, use them as informal discussion and research group on new marketing plans;
  • ask your customers who they think your competitors are for defining your brand;
  • if you get a negative review on Yelp or the like, it’s good thing – gives you an opportunity to show how you respond and change;
  • use video, there are some great apps on smartphones that you can upload to your Youtube account;
  • be more personal, less cookie-cutter in your usage of social media;
  • if you cannot compete on price, location, and the like – compete on YOU, make sure your customer/clients like working with you;
  • always update and double–check your links, dead links help no one.

As a solopreneur I don’t know if I will get to make use of all these ideas, but I definitely think that any business, great or small should definitely think about these things and it offers a great starting point.

See you on Monday or Tuesday next week when I continue discussing evidentiary matters in the context of Social Media.

Have an awesome weekend!

-RKH

For the past several weeks I have discussed the concerns of just putting things on your Facebook, Twitter, and other social media accounts.  I shared with you a few of the scenarios and stories that companies, employees, and people go through when social media goes awry at the workplace.
However, how does this stuff come up, legally speaking?  That’s where we have the Rules of Evidence.  For you readers that are laypeople I will try to keep this as simple as possible, but bear in mind you will be exposed to some legal terms.   For attorneys and law students, we will be sticking to Federal Rules, even though I am in Hawaii.

The Starting Point: Relevancy

Generally speaking, for evidence to be admissible it has to be relevant.  Yes, it is an extremely low threshold and in the realm of fast postings, easy tweets, and tons of drinking pictures that is kind of scary.  Is it relevant that you posted a picture of you jumping up and down partying at the bar?

Yeah, it might be, if you are in a battle over workers’ compensation with your employer and its insurance company over your work-related back injury and that picture was taken after your claim.

Thus, many things in the realm of social media become pieces that lawyers will use to try and craft a story on a matter in a case.  Another words, all those posts, tweets, pics, videos, and whatever else you are throwing up on your account could be fair game as evidence.

What about my Right to Privacy?

While the threshold for admitting evidence is relatively easy, it just needs to be relevant, don’t you lawyers have all these exceptions to the rule?  Can I not claim the stuff I put on my Facebook and Twitter accounts is private stuff?

Yes, we have exceptions.  But, the Right to Privacy in social media is NOT one of them.   This case simply illustrates the principle of why you cannot post or tweet something believing it will be protected.  In Romano v. Steelcase, Inc., 2010 WL 3703242, the New York Supreme Court ordered one party to turnover their MySpace and Facebook content to the opposing party.  For this matter content includes photographs, posts, and even recent deletions.  Why?  The court stated when a person chooses to disclose or share such information their ability to then say that is private is weakened.   If you choose to put it up, then how can you reasonably say you think it will be private?

What about the Terms of Service or Privacy Policy? Won’t that Protect Me?

Facebook, Twitter, and all the other social media sites all have varying Terms of Service and Privacy Policies, but they do remind you that while striving to maintain privacy and giving you the utmost control over your information there is no such thing as perfect privacy in social media.

Risks inherent in sharing information. Although we allow you to set privacy options that limit access to your information, please be aware that no security measures are perfect or impenetrable. We cannot control the actions of other users with whom you share your information. We cannot guarantee that only authorized persons will view your information. We cannot ensure that information you share on Facebook will not become publicly available. We are not responsible for third party circumvention of any privacy settings or security measures on Facebook. You can reduce these risks by using common sense security practices such as choosing a strong password, using different passwords for different services, and using up to date antivirus software.

(emphasis added) Take from Section 8 of Facebook’s Privacy Policy page.

If You are Worried About It, Don’t Post It

As many professionals both in social media and legal circles have told me.  Once you post something it does not go away.  Therefore, in situations where you claimed one thing to one person, but your social media posts clearly shows something else you could find yourself in trouble unexpectedly.  For instance you called in sick to work, but you are showing pictures of yourself at the beach.

Bottom line:  If you don’t want something used against you in court, don’t post it.

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Next time, I will continue the discussion of social media information usage in trial and litigation work and some of the rules and cases that are shaping the laws interaction with these forms of communication.

Don’t forget if you enjoy this series or any of the other series on my blawg feel free to subscribe in the right-hand corner of this page to receive e-mail updates on posts.  If you are on Facebook be sure to “Like” “Ryan K. Hew” to get updates there as well.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Hey everyone!  Today’s post will be short and sweet as I have a lot of projects on my plate.  The main point of today’s post is to get you to think about crafting a good Social Media Policy for your company or organization.  The last several posts should be a reminder of the limitations of a Social Media Policy and how far you can go.

In several instances, overboard policies will be scrutinized and open you to lawsuits.  Completely lax or non-existent ones can also get you in trouble for not taking care of your employees’ posting behaviors during work time.   You should strive to think about what would be best practices for your company and the kind of policy that would make a good fit for it.   Lastly, you can draft your own policies, but if you are unsure the right kind of language or how such a policy would play out legally it is best to seek an expert to review and edit.   In addition, even if you don’t have time someone can work with you to come up with a policy for your review and approval.

Now let’s discuss some tips and considerations for your Social Media Policy:

  1. Purpose or goal – what are trying to accomplish with your policy?  – it is always helpful to have a starting point and place you are trying to get to with any project, and crafting a policy is not any different;
  2. Can do vs. Thou Shall Not – your policy should contain a mixture of what an employee should not do versus positive reinforcement of what they can do with social media, a lot of transparent and social organizations find great success in openness and encouragement of good behaviors;
  3. Internal vs. External – who is your audience? You can always breakdown your social media into categories, subgroups, or types of actions – the policy can start out focusing employees and how to responsibly use social media and then be expanded to how the company views social media usage when delivering its marketing and communications to the outside world;
  4. Authenticity and Accountability – make sure you are writing something genuine and that you care about, in addition, make sure your employees take responsibility with what they write and post – a lot of people feel it is ok to type whatever they feel like and shoot it off into the ether thinking a) no one is paying attention and b) there are no consequences even if they are reading – be sure to make it clear these thoughts are wrong;
  5. Respect for Intellectual Property – make sure to check with the owner of images and works if you can use them, and be sure to always attribute and not take credit for what is not yours;
  6. Protecting your Property – in the same vein that your employees should respect others, they should so respect the owner and the company, which employees them – openness does not necessarily mean sharing your trade secrets
  7. Simplicity – just because the trouble you and your employees can get into involves a lot of legality and technicalities does not necessarily mean that the policy itself has to be written that way – vague, obtuse, and unclear legalese does not help anyone figure out where you stand on a certain behavior or action; it should be clear and concise.

Thanks for reading these simple tips and remember if you always have questions or doubts seek out help!

Next time for Social Media and the Law we will be moving out of creating a Social Media Policy and entering the legal realm of evidence.  These posts will concentrate on a lot of case law and discussing the impact social media is having on the legal system.  While, most laypeople and businesses probably won’t be too interested feel free to follow along.  These posts are more for fellow attorneys curious about how social media has been brought into play during trials and litigations.

As always if you were interested in this series or my other series, like Draw the Law.  Feel free to subscribe by clicking on the “Subscribe” button on the right-hand side of this page.  You can also follow me on Twitter @RKHewesq or Like Me at “Ryan K. Hew” on Facebook.

See you next time!

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*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.


Last post was about creating a Social Media Policy with respect to the employer-employee relationship.  The idea is to minimize potential suits between the employee and employer.  Issues like prohibiting certain behaviors, such as posting negative comments or former employees taking company information should be the concern with an internal policy.

However, many businesses are coming to realize the potential power of blogs, Twitter, and Facebook and readily use social media as a marketing and advertising tool.  And why not?  It is free, relatively easy to set-up, and allows you a good amount of control over content.  However, just like internal disputes you can quickly wind up with external disputes with other companies, commenters, and the like over issues of intellectual property infringement and defamation.

Advertising Statements: Puffing Yourself Up and Tearing Down the Competition

FTC and Endorsements: Disclose Your Relationship

Generally, marketing, advertising, and public relations specialists are comfortable with using mere words of puffery.  They also know that it has been the law that if an ad features an endorser who’s a relative or employee of the marketer or if that endorse has been give something of value in exchange for praise of the marketer’s product or service the ad must disclose the connection.  The point is that knowing about the connection helps the reader or watcher evaluate the quality of the endorsement.

This attitude comes into play when using social media as well.  Specifically, the FTC has issued guidelines about how bloggers, and social media specialists talk about a company’s product or services.  This includes your employees, as well as any marketer, advertiser, or in generally someone speaking on your behalf and you give them something expecting endorsements.

Say you have a new delicious musubi (rice ball) that you want people in Honolulu to know about.  One of your employees is a well-known food blogger.  You give her a sample of the product with the intention that she is to eat it and then rave about it on her blog.  If she does not state that she is your an employee you would be violating the FTC guidelines.

Defamation: Don’t Start Ugly Rumors

On the flip side is going after the competition.  If you or your employees typically engage in discussions via Twitter, Facebook, or comments on your company’s blog you may sometimes start joking with one another.  It is easy to see that this leads to making fun of the competition’s products and services.  However, going too far may mean making false statements that damages their reputation.  In this situation, you may be slapped with a defamation suit.

The general better policy in a situation like this is to remind people to be positive in their postings rather than taking the low road.  Above all do not engage in the rumor mill thinking that the amount of information going out there will protect you.  Once something gets sent out onto the Internet it is almost impossible to take back.  Just look at some of our politicians and celebrities to realize the truth of that fact.

Intellectual Property: Using Other Works

Many people love to share images or quotes on their Facebook posts, Twitter feeds, or blogs.  Generally, they search the web for a cute image and slap it on their post and think they are done.  While, they think that is ok, what they are unaware is that they are infringing on the person who took or made that image’s intellectual property (IP) rights.  When it comes to business the stakes are higher because the owner believes you are using their working to make a profit.

Copyright and Trademark Infringement

In general, when using images and phrases the best policy is to create your own or license it out.  Do not take images and words from another’s website and slap it on your own trying to claim it as your own.  For a prime example of this you can look at my own blog.  Many of the images I use are stock photos,  if I were to go to another law firm’s website and start taking their images and pdf files and posting them here, and claiming them as my own those would be violations of the firm’s intellectual property rights.  While, there may be a  “fair use” exemption it is less likely you will get to use it for your money-making company blog, Twitter, or Facebook page.

Best policies are to create or license the images you want to use, be sure to use attribution links and short quotes from another site.  The last thing in the social mediaverse is you want to be known as a thief of people’s IP.  Always clear use of photos, music, works, etc . . . if you don’t know where they come from.

By the way, remember that people do have publicity rights this includes their image, likeness, and name much like a company controls their trademarks and copyrights, celebrities and people control their image.

Last Words

Next week, I will wrap-up this section with some general tips of crafting a policy and what to think about and some other miscellany.  In general, if you are concerned or feel that your company and employees need a re-training or updating on social media and the laws talk to an expert and have an attorney review and draft your policies.

Don’t forget if you enjoy this series or any of the other series on my blawg feel free to subscribe in the right-hand corner of this page to receive e-mail updates on posts.  If you are on Facebook be sure to “Like” “Ryan K. Hew” to get updates there as well.

See you next time!

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*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

In this series of Social Media and the Law I have touched upon some of the major legal areas of concern when dealing with social media and employment.  To see what was talked about or for a refresher click on the following links:

Having a Social Media Policy

First of all, let me say I understand that a lot of this can be overwhelming.  You may feel that even crafting a Social Media policy is not even a part of the bottom line and seems to be difficult endeavor, especially if you are a small business owner worried about inventory or keeping customers, now you have to think about Facebook, Twitter, and blogs?  So you have one of these initial responses: a) close your eyes and hope for the best; b) create a social media policy that is so general that it is unenforceable or has no meaning; or c) completely ban social media use.

I find a lot of smaller organizations feel this way because they feel they do not have the resources to be effective in this matter.  First of all, smaller organizations are closer to their employees and can directly work with them to craft a good policy.  Secondly, there are many affordable attorneys that can either review what you create or draft something as a pat of your handbook and employee agreements package.

With that being said let’s look at some of the things you should think about when creating a social media policy.  I will start out with the legal landmines you want to avoid when crafting a policy.  It will be followed with some business questions you should ask yourself.

Legal Considerations

One of the goals of a good media policy is one that should help protect the employer from lawsuits.  I will do a brief run through of the various laws that affect your policy, and use examples of what might be considered a good response or way to handle the situation.

Employment Law

Protected Statuses and Discrimination – remember that certain demographics of the population have protected statuses under both federal and state laws.  Therefore, in this area you should avoid using an applicant’s Facebook page to make the decision to hire them.  Once again, remember Hawaii now protects gender expression.

Harassment – as an employer you are legally obligated to create a safe work environment for your employees.  Therefore, if you have a case of “sexting” (sexual texts) or cyberbullying you need to take action or run the risk of violating the law.

Fair Credit Reporting – remember if you use a third party to obtain background information on a potential employee you must get their permission.  As part of the hiring process you could have potential hires fill out authorization forms.

National Labor Relations Act (NLRA) – the National Relations Board, which enforces the NLRA has been keen on clamping down on employers that have broad social media policies that ban protected activities or respond to negative postings on Facebook/Twitter by firing the offending employee.  A couple things about this situation:

  1. Narrow the scope of your social media policy.  Avoid blanket policies that prohibit everything and implement a review policy if you find an offending comment by an employee on a social network site.  Be careful and make sure the comment is offensive and not a commentary on the working environment.
  2. Create a grievance process. If your employees are bad-mouthing your company or managers you may not have a good venting mechanism or allow them to air their grievances.  So they are turning to an outlet, which gives them control over their complaints.  You might need to investigate where the tension is coming from.

Intellectual Property

Trade Secrets – remember that if an employee discloses protected information to a new employer, that new employer could be faced with liability from the former employer.  In general, all companies that have an employee who has access to sensitive information should have that employee sign non-disclosure and non-compete agreements.  In addition, if you are in the habit of providing electronic communication devices (i.e cellphones, laptops, etc . . .) you should remind the employee that the equipment is company property along with all the data contained on it.   You also want to make sure your employees do not post things that are supposed to be secret.

While, this is not a trade secrets situation, this video report by KITV news on a Honolulu Liquor Commission employee highlights the problems of Facebook posting when an employee has access to sensitive information (which includes the identity of fellow employees).

Specific Professions

HIPAA – if you are medical provider or a business affiliate of one should be highly sensitive to staff having access to protected health information on their computers that have Internet access.  Recall that a woman got in trouble for posting a patient’ HIV status on her MySpace.  Excellent training and careful security protocols are a must in this area.

Legal Ethics – attorneys, your paralegals and secretaries should avoid talking about what they are doing at work.  If you have a client who does not want to be identified, and a paralegal inadvertently identifies them through a Tweet or posting a picture you will be in violation of legal ethical rules.  Similar to HIPAA, a lot of training and explicit policies should help you prevent such problems.

Business Considerations

This is not meant to be a comprehensive list, but from a business owner/manager’s perspective these are some questions you should consider when crafting your social media policy:

  • What is your corporate culture?
  • What is the function/nature of your business?  Does it require a lot of confidentiality?
  • Who would you like to have access to the company’s information?
  • Does your company use social media for its advertising and marketing?
  • What is the size of your company?
  • When (during the day/week) is your company in operation?  What is your break-time policy?
  • How sophisticated is your workforce?
  • How important is computing, Internet access, and mobile usage to your company?

You should have some realistic expectations about creating a social policy and then implementing it.  Having absurd goals, like you are going to check all your employee’s Facebook pages at the end of the workday does not do you any favors.   Your policy should be fair and practical because at the end of the day you are are the one who has to get it to work.

Before I get to implementation considerations I will touch upon another aspect of creating a Social Media policy.  As we have seen Facebook, Twitter, and the like do not solely affect your relationship with your employees.  These platforms are sometimes integrated into a company’s marketing strategy and there are certain legal concerns of their use when you engage the world outside the organization.  So next time, (which will be July 5th due to 4th of July celebrating) I will discuss Crafting a Social Media Policy and the Outside World.

Don’t forget if you enjoy this series or any of the other series on my blawg feel free to subscribe in the right-hand corner of this page to receive e-mail updates on posts.  If you are on Facebook be sure to “Like” “Ryan K. Hew” to get updates there as well.  See you next time.

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*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

*The Social Media and the Law Post for today will come out tomorrow.  Instead, enjoy a special post about Hawaii Access to Justice.
** 6/28/11 – CORRECTION – When I first made this post, I mistakenly made it seem that it was the Mediation Center of the Pacific (located on Oahu) handled all cases in the statistics section.  This is NOT the case.  In actuality it was the Mediation Centers of Hawaii (MCH), which includes all community mediation centers across the State, not just the Mediation Center of the Pacific.  The text has been edited to show this change.  – RKH

I was fortunate this past Friday (6/24/11) afternoon to have time to attend the 2011 Hawaii Access to Justice Conference, hosted at the University of Hawaii’s William S. Richardson School of Law.  It was a very interesting and informative Conference filled with a lot of great participation from big law firms to non-lawyers who care about access to justice.

Mediation

I was able to go to the Mediation Effectiveness: When to Use and How to Make it Work workshop facilitated by Tracey Wiltgen, Executive Director of The Mediation Center of the Pacific.  Tracey was able to highlight the serious need of Hawaii to turn to mediation, especially for those in a lower income situation.  With the costs of going to court high, the cutbacks to the Judiciary’s funding, and other governmental services reduced a lot of societal problems have increased.

Here are some interesting Hawaii statistics on mediation, which relate to the Mediation Centers of Hawaii (MCH), which includes all mediation community centers statewide :

  • During the fiscal year of 2009-2010 the MCH served a total of 3,677 cases.
  • During the first three quarters of fiscal year 2010-2011 the MCH served 3,326 cases.
  • Of the FY10-11 cases, 77% of them were court related and they included:
    • 156 Domestic (divorce and paternity)
    • 207 landlord/tenant
    • 182 consumer/merchant
    • 80 Temporary Restraining Order (TRO)

Among the subject matter of the cases, the rate at which the parties were able to reach written agreement varied, but in general it was between 45% to 64%. These are very good statistics considering many of these are contentious situations.

For the public, you should ask about mediation.  It is a very good alternative to start with rather than going to court immediately.  Consider that it is less formal, costly, and time-consuming.  The focus of mediation is to facilitate communication and work out an agreeable situation between the two parties, which is sometimes lost in court battles.  It is confidential and you still have the option of walking out on the mediation and going to court.  However, with fees being so high isn’t it worth the close to 50-50 chance that you could workout something you agree with?

For attorneys, I think this is a prime opportunity for many of us to look for new skills and the way we approach situations.  Indeed, we should always have trial attorneys, but that should not be the only image that the public conjures when you say the word “lawyer.”  It is true that non-lawyers look to us for answers and help with their legal problems and mediation is certainly one extra tool to help fulfill that task.

Elder Law

Finally, I want to give a shout-out to my fellow solo practitioner and 2011 Leadership Institute member, Scott Suzuki.  I was able to go to his workshop on Access to Justice for the Elderly and I was shocked to find out that Hawaii did not have elder abuse laws or caregiver neglect.  At best you would have to cobble together different parts of the law to establish a claim.  In addition, the state has no filial responsibility law, which establishes the duty for adult children to care for their indigent elderly parents.

Now, I most people would already have the inclination of, “this Hawaii, we already do that in our culture,” which I agree wholeheartedly.  Having a strong culture that cares about family and friends is what makes Hawaii an awesome place.  However, we should have the laws to back it up.

Lastly, with you many attorneys separate health care planning out from estate planning.  You should consider an attorney that can handle both because consider as you are aging, money does become an issue as does your health, to think that the two are unrelated, and that once you die the medical bills and estate will be resolved by the people you leave behind is disjointed.  I fully agreed you should seek out an estate planner that has empathy for caring for an aging parent and sets up and estate plan that works for not just the parent, but all takes into account the reality of family dynamics.

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For more information:

See the Hawaii Access to Justice Commission