CRIMINALIZATION OF AIRCRAFT ACCIDENTS: CAN THE GENIE EVER BE PUT BACK IN THE BOTTLE?

CRIMINALIZATION OF AIRCRAFT ACCIDENTS: CAN THE GENIE EVER BE PUT BACK IN THE BOTTLE? Richard Gimblett, Holman Fenwick Willan Roderick van Dam, Eurocontrol Paul McCarthy, IFALPA Jonathan Aleck, CASA Simon Foreman, Soulez Larivière IATA Legal Symposium, Shanghai, 6 February 2012

CRIMINALIZATION OF AIRCRAFT ACCIDENTS

The Issues How widespread is the phenomenon? What are its consequences? What can be done to mitigate adverse impacts? Is the culture reversible or must aviation adapt to and manage the new environment?

How widespread is the phenomenon? What do we mean by criminalisation? Is there a difference between prosecution, licensing action and internal discipline? Is this a worldwide phenomenon? Civil versus common law jurisdictions? Who is in the firing line?

What are the consequences? Possible downside Effects on the integrity of accident investigation/incident reporting/sms regimes Undermining of "just culture" Long term degrading of aviation safety Risk of "scapegoat justice" Possible upside A process of public accountability Even handed application of the rule of law (why should aviation be a special case?) Deterrence of future wrongdoing (especially at corporate/management level)

What can be done to mitigate adverse impacts? Introduction of safeguards to the accident/ incident investigation/ reporting process Alternative means of public accountability Transparency of investigations? Coronial inquest procedure? Codes of conduct for prosecutors? An ICAO Standard?

Can the culture be reversed or must aviation adapt? To what extent does the trend towards criminalisation reflect the culture we live in today? Can aviation realistically claim special or different treatment? Is it a question of balance and, if so, where should/can the line realistically be drawn? How does one manage the risk of abuse/manipulation inherent in any safety weighted regime?

Facing Up To Facebook The significance and Legal Implications of Social Media for the Airline Industry Facing Up To Facebook 13/02/2012

Daliah Saper Loyola University Chicago Michael Carbone Jet Blue Nigel Howard Covington & Burling LLP John Goetz Jones Day Facing Up To Facebook 13/02/2012

Facing Up To Facebook 13/02/2012

Facing Up To Facebook 13/02/2012

Facing Up To Facebook 13/02/2012

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Facing Up To Facebook 13/02/2012

Why are airlines using social media for marketing and sales? Customer engagement Drive revenue Influence future behavior Facing Up To Facebook 13/02/2012 15

3 examples JetBlue s Cheeps Tweets Malaysia s MHbuddy on Facebook KLM s Meet & Seat Facing Up To Facebook 13/02/2012 16

3 important legal issues Data ownership Privacy Endorsements Facing Up To Facebook 13/02/2012 17

Facing Up To Facebook 13/02/2012

Organized Labor and Social Media 54.1% of unions use Facebook, 31.1% use Twitter, and 24.6% use YouTube. Labor unions use social media as a vehicle to gain access to employees: Websites and YouTube provide information and gain easy access to organizers. Social networking sites organize campaign activities, direct organized employee action, gather feedback. Facing Up To Facebook 1 13/02/2012

U.S. Law Regarding Social Media U.S. law is developing and in flux. Administrative Agency guidance only: ALJ Rulings, NLRB Memoranda (relevant) Review of employee discharges, suspensions for postings critical of employer, co-employees, pay. No U.S. Court of Appeals has reviewed Agency decisions pertaining to Social Media posts. Facing Up To Facebook 2 13/02/2012

Facing Up To Facebook 3 13/02/2012

Two Main U.S. Points 1. Certain employee communications constitute protected concerted activities under Federal law. An employee posts a comment about wages on Facebook, sparking a discussion among employees. 2. Comments are generally not protected if they are individual gripes not made in relation to employee group activities. Single employee postings about the employer, co-employees containing offensive, opprobrious language. Facing Up To Facebook 4 13/02/2012

Reasons to Draft a Social Media Policy Carefully drafted social media policies can limit employee abuses and transgressions. Social media policies can protect employers from potential liability. But, cannot be overbroad! Facing Up To Facebook 5 13/02/2012

Discovery Social media data routinely being requested in civil discovery. Largely in the personal injury context Trial courts are split on these issues: Relevance is key factor good-faith basis for believing that social media will yield admissible evidence. Facing Up To Facebook 6 13/02/2012

Trial Juror access to internet/social media during trial. Mistrials caused by tweeting, blogging, and surfing. Use of social media during cross examination. Consider previewing to Judge in advance. Use of Cautionary Instructions. Voir dire. Continually during trial, and in jury instructions. Facing Up To Facebook 7 13/02/2012

Social Media: Workplace and Litigation Issues John D. Goetz Jones Day February 6, 2012

Agenda 1. Significance of Social Media 2. U.S. Law Regarding Social Media 3. Drafting Effective Social Media Policies 4. Using Social Media in the Hiring Process 5. Social Media in Litigation 28

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Social Media Broad Scope! Collaborative information-gathering (e.g., Wikipedia). Blogs and microblogs (e.g., Twitter, Tumblr). Social video/photo sharing (e.g., Youtube, Flickr). Social networking (e.g., Facebook, LinkedIn). Social news sharing (e.g., Digg, Reddit). Social bookmarking of resources (e.g., Delicious). Social trading and deals (Ebay, Groupon). Business Reviews (Yelp, TripAdvisor) Virtual hostess (Opentable). Virtual game and social sites (e.g., World of Warcraft, 30 Second Life).

Airlines and Social Media Social media is used by airlines: Offering deals to customers through Groupon or Twitter. Soliciting, accepting, and confirming reservations through Facebook. Growing fan base through Youtube or Flickr. Sharing information. Soliciting customer feedback. 31

Organized Labor and Social Media 54.1% of unions use Facebook, 31.1% use Twitter, and 24.6% use YouTube. Labor unions use social media as a vehicle to gain access to employees: Websites and YouTube provide information and gain easy access to organizers. Social networking sites organize campaign activities, direct organized employee action, gather feedback. 32

Why Unions Use Social Media Inexpensive and highly effective. Facilitates rapid dissemination of information. Enables employee participation and comment on campaign issues. Flexibility - employees can connect with the union at any time/location. Less confrontational - allows undecided employees to check out the union for themselves. Less intrusive than home visits by organizers. Quick interaction with the public. 33

The Developing Law Regulating Social Media 34

U.S. Law Regarding Social Media U.S. law is developing and in flux. Administrative Agency guidance only: NLRB Rulings (3 cases). Administrative Law Judges Decisions. Division of Advice Recommendations. No U.S. Court of Appeals has reviewed a National Labor Relations Board ruling pertaining to social media. 35

U.S. Law Regarding Social Media (cont d) NLRB GC Memo 11-74: Acting General Counsel views on all 14 social media cases referred to it over past year. NLRB Memorandum OM 12-31 (issued 1/24/12): Provides guidance to practitioners and HR professionals on addressing the legal issues surrounding employee Social Media postings. Acting General Counsel Lafe Solomon 36

Summary of U.S. Law (So Far) Cases involve review of employer decisions to discharge or suspend employees for Social Media postings critical of employers, co-employees, or pay. Cases are highly fact specific and turn on: How Social Media was used, what was said, in what context and circumstance. Do equities favor employer or employee? 37

Two Main Points and Examples Section 7 of the National Labor Relations Act protects the right of employees to engage in concerted activity. 29 U.S.C. 157. 1. Certain employee communications constitute protected concerted activities. An employee posts a comment about wages on Facebook, sparking a discussion among employees. 2. Comments are generally not protected if they are mere gripes not made in relation to employee group activities. Individual employee postings about the employer, coemployees containing offensive, opprobrious language. 38

Drafting Social Media Policies 39

Reasons to Draft a Social Media Policy Carefully drafted social media policies can limit employee abuses and transgressions. Social media policies can protect employers from potential liability. But, cannot be overbroad! 40

Drafting a Social Media Policy: Be Specific What behaviors will the policy cover? How is social media defined? Working time vs. non-working time. Use of Company-issued equipment vs. personal computer or smart phone. Will the policy define what is appropriate social media behavior? Does the policy allow limited personal use? Does the policy clearly define activities that will be allowed? How will the employer monitor social media usage during work time? Limit internet access/block social media sites. Monitor usage. 41

Legal Considerations Does the policy restrict group activity? Would employees understand the policy to prohibit protected activities? Does the policy contain an effective disclaimer? Do the restrictions contain clear language? Are terms adequately defined? Are restrictions narrowly tailored to legitimate business interests? How will the policy be enforced? Who will answer any questions regarding the Policy? Is consent required for any monitoring activities? 42

Using Social Media in Hiring Process 43

Social Media in the Hiring Process The potential risks: Social media may disclose information that cannot legally be requested or considered in the hiring process (e.g., medical information, religious beliefs, etc.) Knowledge obtained through social media can create inference of unlawful intent. Information obtained on social media sites may be unreliable (e.g. mistaken identity, hackers, uncontrolled content). 44

Using Social Media in the Hiring Process: Legal Planning Identify acceptable social media sources to be reviewed. Specify what legally permissible information should be reviewed and considered. Train personnel who will perform the searches. Policy should be uniformly applied and enforced. Policy should expressly prohibit discrimination based on information obtained through social media. Policy should include confidentiality provisions limiting disclosure of potentially discriminatory information. 45

Social Media in Litigation 46

Discovery Social media data routinely being requested in civil discovery. Largely in the personal injury context Could be relevant in employment disputes. Trial courts are split on these issues: Relevance is key factor good-faith basis for believing that social media will yield admissible evidence. Courts have denied access where no clear link to the dispute. 47

Trial Use of social media during cross examination. Evidence must be ethically obtained. Consider previewing to Judge in advance. Juror access to internet/social media during trial. Mistrials caused by tweeting, blogging, and surfing. Use of Cautionary Instructions. Voir dire. Continually during trial, and in jury instructions. 48

Questions 49

Countries Currently and in the Near Future Requesting Electronic Air Cargo Data Canada Mexico United States European Union Member States China Japan Korea Chile Colombia Costa Rica Ecuador Panama Bermuda Jamaica Egypt Ethiopia Ghana Kenya Nigeria South Africa Sudan Israel United Arab Emirates Australia New Zealand Philippines Singapore Taiwan Thailand Vietnam For current status and country information: www.iata.org go to areas of activity, cargo, cargo facilitation