Social Media Legal Issues and Guidelines

Transcription

1 Social Media Legal Issues and Guidelines Mesha Williams: IAFF Social Media Editor Megan Mechak: Woodley & McGillivary LLP, Partner January 2016

2 Is this Acceptable? Scenario 1 Work Post A fire captain published a link on his personal Facebook page about a recent call involving a tow truck driver. The tow truck driver responded to a three-vehicle collision at a rail crossing and parked on the tracks. When the tow truck driver tried to move his vehicle for fire trucks, he suddenly realized a train was coming in his direction. The tow truck driver didn t survive the accident. At the time, when the fire captain made his post to Facebook he was not aware the tow truck driver lost his life. He wrote, Are all tow truck drivers f.g idiots? Ya buddy at least you only hurt yourself this time and inconvenienced everybody else. Is this an unfortunate mistake and awful timing made by the fire captain? Is the fire captain s social media activity acceptable under your city s policy? How would you as an affiliate leader advise a member on using social media after dealing with an incident they find simply incredulous? Do you think this a fire-able offense?

3 Is this Acceptable? Scenario 2 Personal Post A fire fighter warns his neighbor to keep his dogs off his property after two dogs attacked his livestock. Some time later, the fire fighter finds the dogs in his barn attacking his livestock again. The fire fighter shoots both dogs dead and posts the images on Facebook with this caption. Somebody didn t put any truth to my warning. Keep your damn dogs on your property. The state law says that if a dog or coyote attacks a livestock it maybe killed by someone who witnesses it or the animal owners and can t be held liable by the dogs owner. Now the fire department has received death threats from across the world including Australia and Poland. We see what the state law says, but was it right to post to social media? Why or Why not? Does this fire fighter deserve disciplinary action? If you are the union leader, what kind of conversation should be had with this member?

4 What Is Social Media?

5 What is Social Media? Social Media includes web-based and mobile technologies used to turn communications into an interactive dialogue Allows the creation and exchange of user generated content

6 What Is Social Media? Information Engaging Open Quick Builds Community Makes People Feel Like Experts

7 What Is Social Media Types of Social Media Blogs Podcasts Social Networks Career Networks

8 Union Use of Social Media Communicate the work you do to the public Helps you communicate the causes and issues you support Organize a campaign on a global level Build a group of online supporters Helps you communicate with your members, community and elected officials Helps you control your image, message and brand

9 Developing Content Locals Who Do Social Media Well

10 IAFF Use of Social Media Advocate on issues that affect our members including safety, staffing and other benefits Inform our members of trends, changes and updates happening in the fire service Helps us better communicate the issues that matters to our members to key decision makers Keeps us connected to IAFF members, and you to each other

11 IAFF Best Practices Guidelines For Personal Use: Take responsibility for what you post online. Don t publish hearsay, innuendos or confidential information that pertains to the union, fire department, media or elected officials Avoid posting abusive, insubordinate, incendiary or disloyal remarks (images) that pertain to elected leaders, fire departments, the media or about other fire fighters online Avoid posting anything that will put you under scrutiny by your employer Use your best common sense when posting online because even if you delete information it can still cache on your computer. If you feel unsure about posting something listen to the warning bells Be mindful of where you use social media

12 IAFF Best Practices Guidelines For Union Use: Devise a social media plan for your IAFF local and implement it Determine who will be responsible for your social media outreach Determine how your social media goals will relate back to your affiliate s overall strategic plans Be accurate and honest with everything you post online Don t post anything based on emotion or when feeling politically attacked Take responsibility for what you post online. Don t publish hearsay, innuendos or confidential information that pertains to the union, fire department, media or elected officials Give proper credit for copyrighted images and other intellectual property you use on social networks Avoid posting abusive, insubordinate, incendiary or disloyal remarks (images) that pertain to elected leaders, fire departments, the media or about other fire fighters online Be mindful of where you use social media Be aware of any rules that may pertain to using social while on the job

13 IAFF Best Practices Guidelines Things to consider when drafting your local s social media guidelines Be careful who you assign to manage your social media networks. Determine who can post items. Also determine what items are appropriate Your policy should also stress that social networking sites are open to the public: organizing goals, negotiation strategies should not be posted on these sites. Be clear on admin rights and who owns your social media pages. For checks and balances, all admins should have equal rights.

14 Social Media Tipping Points You Could Be Fired Over the Following: Breaking Confidentiality Bashing Your Employer Pornographic Images Flaunting Drug and Alcohol Use Racist, Sexist and Homophobic Rants Misrepresentation of Position

15 Department Social Media Policies Philadelphia Baltimore (trying to get copy of its policy)

16 Department Social Media Policies Philadelphia Mississauga, ON Local 1212 CWA Union Phoenix, AZ Minneapolis, MN

17 Stay Out of Trouble Some things to Remember Everything you put online is permanent. (Even if you can delete it. There s no going back). Think before you post. Know your city s social media policy If you say something online that gets you into hot water, don t wait apologize quick!

18 Stay Out of Trouble Some things to Remember Everything you put online is permanent. (Even if you can delete it. There s no going back). Think before you post. Know your city s social media policy If you say something online that gets you into hot water, don t wait apologize quick!

19 Internal Social Media Issues Determine who will control the Local s social media accounts (based upon position, not individual) President should have access to social media accounts for continuity purposes Ensure that individual(s) with authority to post understand your Local s strategic plan and the IAFF Social Media Guidelines Consider implementing approval or checks and balances to prevent inappropriate posts

20 Developing Content You need to own your content. As a leader ask yourself the following? Does my Local have a photo and video archive in order to produce original content for messages and campaigns? If not, you may need to consider using stock photos and follow the terms of agreement set forth by those services. Always ask for written consent to use any Media outlets photos and videos when planning to use for campaigns. This also includes logos. The IAFF has developed a set of safety toolkits that includes downloadable infographics, sample tweets and Facebook messages. You may use any of the materials.

21 Internal Social Media Issues Ensure that the Local s authorized users understand the platform s Terms of Use Developing Content Creation of unique content Linking to others content

22 Intellectual Property Issues - Copyright Provides protection for original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device Protects original content from being used without permission

23 Intellectual Property Issues Trademarks A word, phrase, symbol or design, or combination of words, phrases, symbols or designs that identifies and distinguishes the source of the goods of one party from those of others. Also generally encompasses service marks To qualify: Must be distinctive, Not confusingly similar to an existing mark, Must not be deceiving

24 Intellectual Property Issues Right of Publicity Expanded notion of celebrity Protection of a person s name, portrait/picture/likeness, or voice Issue of striking a balance between an individual s rights to protect their name and images (and capitalize on the exploitation of the same) versus First Amendment protections Share some similarities with trademark and copyright law

25 Intellectual Property Issues Copyright automatically lies with the creator no registration required! Trademark automatically vests in the mark s owner (but registration has advantages) Ensure you have permission, or your use falls into an exception to the law: Fair use First Sale Doctrine

26 Department Social Media Policies Ensure that policy is clearly drafted Areas to consider: Specificity Reason(s) for Providing Internet Access (resulting in Limitations on Use/Access) Monitoring Employee Internet Use Should clearly explain policy and how employee use will be monitored Clearly state expectations of privacy Are s considered employer s property?

27 Department Social Media Policies City of Bay City and IAFF Local 116, 134 LA 276 (Daniel, 2014) Rule limiting firefighters rights to express themselves to the degree that their speech does not impair working relationships of this Department for which loyalty and confidentiality are important is reasonable

28 Department Social Media Policies Rule barring firefighters from disseminating any information to which they hae access to as a result of their employment on social media is generally permitted Cannot apply to information that is already publicly known or has been published by another organization pursuant to FOIA

29 Department Social Media Policies Rule barring firefighters from using objectionable language on social media is reasonable Whether particular language is reckless and irresponsible depends on facts of case Rule requiring firefighters to report violations of social media policy to supervisor is unreasonable Unreasonable to threaten or discipline employees for failing to snitch

30 Limitations on Discipline First Amendment protections for speech outside of work Meyers Industries, Inc., 28 NLRB 118 (1986) (Conversation may constitute concerted activity, even though it only involves the speaker and listener, so long as it had some relation to group action in the interest of employees. ).

31 Limitations on Discipline City of Ada and IAFF Local 2298, 134 LA 702 (Lumbley, 2014) Firefighter s off-duty Facebook posts regarding police officer warranted discipline where firefighter threatened police officer and cursed at him Posts violated workplace harassment policy Posts were offensive, intimidating, hostile derogatory, disparaging, bullying, disrespectful, and threatening

32 Limitations on Discipline Firefighter could not be disciplined for posts stating the City was infested with leeches or that certain employees left work early, because such posts touched on matters of public concern Firefighter s post-discharge posts were not relevant to underlying discipline issue, but pertinent to whether employee should be reinstated if discharge was inappropriate