Best Practices for Social Media in the Corporation. Social Media Overview 8/8/2011

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Best Practices for Social Media in the Corporation Teresa Burnett Social Media Manager Deere & Company Joel Resnick Director of Electronic Discovery & Computer Forensics Evolver Legal Services Deb

1 Best Practices for Social Media in the Corporation Teresa Burnett Social Media Manager Deere & Company Joel Resnick Director of Electronic Discovery & Computer Forensics Evolver Legal Services Deb Ratterman-Warnecke Director, Discovery Services Sears Holdings Management Corporation Social Media Overview Social Media is everywhere and it is starting to play a major role in the workforce as part of a company s marketing strategy. Companies utilize Social Media with the key points in mind. Engage Customers/Support Share information with key stakeholders Brand Exposure Lead Generation Listen and Respond To be recognized as leader Questions to ask before implementing a Social Media strategy Is the information on social media sites considered private, whether it is discoverable and whether it is admissible as evidence. E-Discovery from Social Networks is now standard in e-discovery work. Social networking site founded in 2004 Currently 500,000,000 active users Approx. 1 in every 13 people on earth 50% logged in on any given day 69% of all Facebook users are a fan of one or more company pages Over 700 billion minutes per month spent on Facebook 20 million applications installed per day In just 20 minutes on Facebook over 1 million links are shared 2 million friend requests are accepted almost 3 million messages are sent 1

2 Free social networking and micro-blogging service enabling users to send and receive tweets (text based posts of 140 characters). 280,000,000+ users 50 million. The average number of Tweets people sent per day, one year ago. 140 million. The average number of Tweets people sent per day, Feb million. Tweets sent on March 11, ,000. Number of new Twitter accounts created on March 12, ,000. Average number of new Twitter accounts per day over the last month. 29% of Twitter users use Twitter to follow their favorite companies 53% of people on Twitter recommend companies and/or products in their tweets Business oriented social networking site launched in May ,000,000 members worldwide 56% of users are outside the US 61% of members are men Top represented industries: 17% Hi-tech 14% Finance 10% Manufacturing Blogging 77% of internet users read blogs Blogs are among the top four social media tools used by marketers 56% say their blog helped their company establish positioning as a thought leader within their industry More than 133,000,000 blogs have been indexed by Technorati since % say that they are better known in their industry due to their blog 2

3 Legal Times Legal Issues Harassment Libel, slander and defamation Intellectual property Securities fraud (SEC) Employment Legal Guidelines Duty to Preserve: The 2006 Federal Rules of Civil Procedure amendments changed the discovery rules to allow a party to request electronically stored information within the possession, custody, or control of the responding party. Iterasi, Smarsh, Arkovi and LiveOffice SCA ECPA PPA Collection of Data Comprehensive plan to collect data. chain of custody collects only what is requested format easily processed and reviewed Discovery of Social Media Data Does relevant data exist on social media sites? the costs to preserve, collect, review and produce the social media information should be considered Starts with large sweeping web searches for public social media site Many individuals do not lock profiles or use privacy settings all postings, messages, comments, etc. are open to the public. Preserve the sites with date stamps. Finally, ask for all social media identifications used by the adverse party in an interrogatory. Regardless of what direction taken, social media should be a part of the ediscovery process 3

4 Cases: Guest v Leis 255 F 3d325(6 Cir 2001) The Sixth Circuit has held that submission of personal information to a third person negates an Internet bulletin board subscriber s expectation of privacy Background Ohio police involved in an on-line obscenity investigation seized two computer bulletin board systems in accordance with a warrant. Plaintiffs, iff including system users, and the owner and operator of the computer brought a class action alleging First and Fourth Amendment violations. Plaintiffs also alleged violations of the Electronic Communications Privacy Act ("ECPA"), which regulates the disclosure of electronic communications and subscriber information, and the Privacy Protection Act ("PPA"), which, prohibits searches for documents intended for publication. The court rejected each claim, holding that a reasonable expectation of privacy is generally lost when information is sent to third parties, and that seizures according to a warrant do not run afoul of the First Amendment, ECPA, or PPA EEOC v. Simply Storage Mgmt., LLC Overview on behalf of two named claimants and similarly situated individuals who allege the defendant businesses (collectively referred to in this Order as Simply Storage ) are liable for sexual harassment by a supervisor. The facts of Simply Storage Mgmt, involved the defendant seeking production of social media site profiles and communications i from Facebook and MySpace. The court ordered the plaintiff to produce the content that was relevant to the case. The plaintiff argued that requiring such production would infringe on his privacy. However, the court held that the expectation of privacy is not a basis for shielding discovery. In addition, the court found that any privacy concern therein was lessened due to the fact the information had already been shared. No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010). Romano v. Steelcase Inc. Defendant: Facebook Profile May Contain Evidence Contrary to Claims Steelcase argued public portions of Romano s Facebook and MySpace profiles provide information contrary to her claim Plaintiff: Private Facebook Content Is Protected Romano countered that she possesse[d] a reasonable expectation of privacy in her home computer. Court: Private Information Doesn t Belong on Facebook ORDERED, that Defendant STEELCASE's motion for an Order granting said Defendant access to Plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information, is hereby granted in all respects WL (N.Y. Sup. Ct. Sept. 21, 2010) 4

5 Crispin v. Audigier (C.D. Cal.) (May 26, 2010) Facts: Crispin sued Audigier, alleging that Crispin granted Audigier an oral license to use some of Crispin's works of art in connection with the manufacture of garments by Audigier. Crispin alleged that Audigier (1) failed to include Crispin's logo on the garments; (2) wrongly attributed Crispin's work to another artist; and (3) wrongly sublicensed Crispin's copyrighted material without permission. Crispin brought a variety of claims, including copyright infringement claims. Audigier subpoenaed third party businesses, including Media Temple, Facebook, and MySpace, seeking communications between Crispin and a tattoo artist A California district judge ruled that Facebook and MySpace messages that aren t publicly available are protected information under the Stored Communications Act, and therefore can t be subpoenaed for use in civil litigation Ruling states in relation to webmail and private messaging, the court is satisfied that those forms of communications media are inherently private such that stored messages are not readily accessible to the general public. Regarding Facebook wall postings and MySpace comments, however, the court concluded that the evidentiary record presented is not sufficient to determine whether the subpoenas should have be quashed. The only piece of evidence adduced was a Wikipedia article stating that Facebook permits wall messages to "be viewed by anyone with access to the user's profile page" and that MySpace provides the "same" functionality. Assumed the general public had access to plaintiffs Facebook wall and MySpace comments. Hillstone Restaurant Group V Pietrylo Brian Pietrylo and Doreen Marino filed a lawsuit against their former employer, Hillstone Restaurant Group d/b/a Houston's, following their termination for posting comments critical of the company on a private MySpace page Pietrylo and Marino claim that the managers of Houston's gained access to the page only after they "strong-armed and threatened a member of the private group so that this member was forced into providing them with the member's address and password Pietrylo and Marino sued their former employer, arguing that its actions violated the federal Stored Communications Act and Wire Tap Act. Pietrylo and Marino also claimed that management's actions constituted an invasion of privacy and a violation of freedom of speech A jury found that Houston's managers had violated the Stored Communications Act and the New Jersey Wire Tapping & Electronic Surveillance Act by intentionally accessing the MySpace page without authorization. The jury found in favor of the defendants on Pietrylo's and Marino's claims for invasion of privacy, finding that the plaintiffs had no reasonable expectation of privacy in the MySpace group. Conclusion Craft an overall information governance framework and policies and then to educate the users. A policy banning certain types of social media in the workplace may seem the best course, one should also consider if and how that policy could effectively be enforced given the proliferation of consumer-oriented social media sites. Educating employees as to when and how social media can be used appropriately in the business, as well as providing examples of poor choices in that arena, along with the resulting consequences, may prove more effective than banning the practice outright. Biggest issue is what is private vs public from a discovery point. 5

6 SOCIAL MEDIA PRO/CONS Internal Viewpoint Deb Ratterman- Warnecke Sears Holdings Management Corporation Social media is a commonly used term that refers to a set of interactive online tools used to share information and content. Embracing social media as a corporate communication tool meant developing a social media policy that embraced multiple applications. For purposes of our policy we defined social media to include, but not limited to the following: Blogs Message Boards Chat Rooms Online Forums Social Networks Video Sites We identified social media as a significant opportunity to positively promote the company and build a relationship with our customers. We had to develop a policy that did not restrict the flow of useful and appropriate information, but one that would also minimize risk to the company and its associates. PROs Leverage open communication across businesses without any inhibitors (job class, location, or time zones) Promote culture of oneness Shared experiences, interactive engagement, Problem solve (ex. supply/demand, d product issues, displays, improve customer service) Cultivate creativity, polls, surveys, research, buying guides Promote corporate business goals/values Quick dissemination of information (save time/internal resources=$$) Opportunities for development of new business and strengthening our current brands 6

7 CONS Assessing compliance w/social Media Policy Clear use message (what is the objective) Risk analysis (IP, Wage & Hour/Employment, Product Liability, Privacy) Increased litigation costs Difficulty trying to control real time dialog Metrics support investment in SM Becoming stale or irrelevant (sites have to pull customers in) Privacy Development costs External Viewpoint Teresa Burnett Social Media Manager Deere & Company Social Media Objectives Purpose: Manage a corporate presence with a scalable approach to social media platforms which enables enterprise-wide consistency for the John Deere Brand and increasingly sophisticated efforts to build relationships with customers online. 7

8 Channels Facebook 570K+ fans YouTube 2,500+ subscribers, 1.2mil views Twitter 7,800+ followers Framework Policies/Governance/Training Monitoring & Response Content Management Reporting & Communication Policy Specifics Follow the Business Conduct Guidelines and all other company policies Speak on behalf of the company only when officially authorized Clearly identify yourself and your role in the company Add value and respect others Accept personal responsibility Respect the legal rights of others 8

Monitoring & Response Shared responsibility

PR/eBusiness Med - ebusiness/corporate Low -

9 Monitoring & Response Shared responsibility Daily monitoring Manual and automated process Archived URGENCY Legal - Legal/Corporate Urgent - PR/eBusiness High - PR/eBusiness Med - ebusiness/corporate Low - Corporate Monitoring & Response Content Management Content Submission Process Editorial Calendar Divisional/Corporate review Archive deleted posts 9

10 Closing Thoughts The Web is Now a Conversation Forum The Conversation Cannot be Controlled Don t Censor - You May Not Need To Transparency & Responsiveness Count Establishing the Right Roles is Critical Questions to ask? How does the use of social media affect employee productivity? What restrictions should be in place when employees are interacting on social networks? How will you train employees to understand these restrictions? How will you train employees to understand these restrictions? How will you enforce violations? Does your company have policies specifically addressing employee use of social media outlets (Facebook, Twitter, LinkedIn etc)? How is employee activity monitored on social media outlets? 10

Status Update: Developments On Social Media In The Workplace

Status Update: Developments On Social Media In The Workplace League of California Cities City Attorney Track September 19, 2013 Traci I. Park Burke, Williams & Sorensen, LLP www.bwslaw.com Los Angeles