Managing the Legal Risks of
Social Media
Daniel Goldman
Legal counsel
Mayo Clinic
What is “Social Media”?
• “social” websites in which users
interact with the site and each other
• interconnected networks of friends
or followers
The Power of Social Media
The Social Media Revolution
Major Social Media Sites
• Facebook
•King of the hill: 500 million active users. 250
million logon each day
Major Social Media Sites
• MySpace
•Started the revolution; now a historical artifact
•Younger demographic
•Shifted focus to music and entertainment
•200 million users
•May be in death spiral: 1/11 laid off 50% of
work force
Major Social Media Sites
• Twitter
• Broadcast texting to “followers”:
• 140 character “tweets”
• Can include links
• Subscription model
• “Follow” people to get their tweets
• People who follow you get your tweets
• Claims 175M active users
• 1B tweets sent weekly
Twitter
• Become a business tool
• Channel for sharing professional
•
news/information
• HIPAA breach notification rules
• Red flag rule postponement.
• New Massachusetts privacy revisions
Huge marketing reach
• Quick, nimble, dynamic
• Able to quickly interact with massive
numbers of customers/potential
customers
Twitter
Twitter: Companies Engaging With
their Customers
Twitter
Major Social Media Sites
• Linked In
•Professional Networking Site
•Can post status updates and send
messages
Major Social Media Sites
• YouTube
•Video sharing site
•300 million visitors per month
Major Social Media Sites
• Yammer
•“private” social network for companies
•Used by 90,000 companies; 80% of F500
Major Social Media Sites
• Location-based social media sites
• Foursquare
• Check in at various locations to let others
•
know where you are
• Become “Mayor of a location”
• Earn rewards/discounts from retailers
based on number of check ins
• Leave reviews/comments on
locations/retailers
• 200k users 12/09 5M users 10/10
Major sites adding location/check-in features
• Facebook Places
• 30M users have tried
Location-Based Social Media:
Foursquare
Foursquare
Foursquare
Foursquare
Foursquare
Who’s Using Social Media:
Individuals
• Recent Harris poll (1/11)
• 65% of Americans report
themselves a social media users
• Up from 35% in 2008
• Older users rise dramatically
• Baby boomers (46-64) 9%-43%
• Mature (65+) 4%-16%
Who’s Using Social Media:
Businesses
• 80% of Fortune Global 100
companies use some form of social
media (blogs, twitter, facebook)
• Most used:
• Twitter: 60%
• Facebook: 54%
• YouTube: 50%
Source: Burson-Marsteller Fortune
Global100 Social Media Study 2/2010
Social Media Adoption in
Healthcare
• 906 US hospitals using social media
(approx 15%)
• 719 Facebook pages
• 674 Twitter Accounts
• 439 YouTube Channels
• 439 LinkedIn Accounts
• 106 Blogs
Source: www.edbenett.org
Most Popular Twitter feeds
• Mayo Clinic (MN/AZ/FL):
• 97,000 followers
• St. Jude Children’s (TN)
• 11,000 followers
• Children’s Nat’l Med Ctr (DC)
• 8,600 followers
• Emory John’s Creek Hosp (GA)
• 8,300 followers
• Aurora St. Luke’s (WI)
• 8,300
Most popular Facebook Pages
• St. Jude’s (TN)
• 338,000 fans
• Children’s Hospital of Boston (MA)
• 475,000 fans
• Arkansas Children’s Hosp (AR)
• 76,000 fans
• Mayo Clinic (MN/AZ/FL)
• 35,000 fans
• VHA (DC)
• 30,000 fans
Common Uses of Social Media in
Healthcare
• Deliver information
• health and wellness
• Your hospital/brand
• Connect and interact with patients,
potential patients and “friends” of your
brand
• Foster online communities
• Patients and individuals can interact
with each other re health and your
brand
Benefits of Business Use of Social
Media
• Interactive nature: Dialogue not
monologue
• More meaningful interactions
• Chance to listen as well as speak to
your customers: free market research
• More trusted than advertising
• Community
• Particularly powerful with health issues
• Esp significant/chronic health
conditions (e.g. depression)
Benefits of Business Use of
Social Media
• It’s where the people are, esp. under 30
• Can interact with/influence large
numbers of people
• It’s free
• Did I mention that it’s free?
Why is Mayo Clinic Involved in
Social Media
• Build our brand
• How our brand has grown for last
100 years
• Hi-Tech WOM
• Powerful tool to deliver health
information
• Power and immediacy of community
Benefits of Using Social Media in
Healthcare
• “Social media gives me access to a world of people living
with type 1 diabetes, just like me. Any hour of the day or
night I can tune in to discussions on Twitter or Facebook, I
can read thousands of blog posts written by people from all
walks of life, all living with type 1 diabetes, and I can find
YouTube videos that make me laugh and cry. I can find
connections. I can find people who understand exactly what
I’m going through. These people and their stories become
an emotional lifeline. Suddenly I don’t feel so alone or
isolated. In fact I often feel inspired and empowered by what
I’ve seen.”
• Scott Johnson http://www.diabetesdaily.com/johnson/
Mayo Clinic:
Facebook, Twitter, Youtube, Blog
Changing Health Communication
• Mayo Clinic Center for Social
Media
•Create resources for use
at Mayo Clinic that can be
shared with organizations
wanting to use social media
in health and health care
• Social Media Health Network
•Membership group for
orgs wanting to use social
media to improve
healthcare
•Sharing, Collaboration
development of resources
Challenges of Social Media
• Speed
• Interconnected nature of social
networks means information
moves quickly
• Less time to analyze and react
than traditional media
Challenges of Social Media
• Reach
•Social media gives individuals access
to staggering numbers of people
Challenges of Social Media
• Reach
• “United Breaks Guitars" video on
YouTube: 10 million views
Challenges of Social Media
• Blurring of professional/personal
lives
• Most social media sites encourage sharing of
•
•
•
•
info about professional lives
Difficult to separate what happens at work
from other events in your life
Difficult to not reveal where you work
Many challenges when lawful personal
conduct is in tension with professional
expectations
Particular challenge in professions such as
healthcare/legal with high ethical expectations
Challenges of Social Media
• Generation of “lifecasters”
• Expectation of sharing of all
details of life
• Including what happens at work
• Not the same expectation of
privacy as older generation
• In tension with increasingly strict
privacy laws
Challenges Unique to Specific
Industries
• Privacy
• HIPAA, GLBA and state privacy laws make
•
•
information sharing a challenge in privacyregulated industries such as healthcare,
financial services, legal.
Stakes are high if employees act
inappropriately
• Fines, lawsuits
• PR and Brand risks
Can limit your ability to respond to critics and
unhappy customers
Ethical Issues: “Friending” Clients
• Raises challenging issues regarding
appropriate boundaries for
professional relationships
• Blurs what is and isn’t part of the professional
•
•
relationship
Particular issue with respect to lawyers
friending judges and other litigants/clients,
physicians friending patients
Professions are just beginning to sort out the
ethical issues
Managing Risk Through Social
Media Policies: General Thoughts
• No “one size fits all” approach.
• Policy is as much a reflection of
corporate culture as law
• Must understand your company’s
brand, tolerance for dissent and
risk, relationship with workforce
and balance that with what the law
allows
Social Media is a Dialogue, Not a
Monologue
• Traditional marketing/advertising
• billboard
• Pro: Advertiser controls message
• Con: People no longer trust, no ability to hear
what customer wants
• Social media
• Conversation
• Pro: interactive, people trust, you can hear
•
what’s important to your customer
Con: much less control. “Community”
expects you will respond to criticism, not
“censor” it.
Social Media is a Dialogue, Not a
Monologue
• Expectation is that people will talk back to
you, and that you will listen.
• Must have a thick skin to participate in
social media
• You may have to tolerate some things you
don’t like
• Esp challenging in Healthcare: HIPAA
limits your response to criticism
Social Media is a Dialogue, Not a
Monologue
• Even if you can respond, should you?
Social Media is a Dialogue, Not a
Monologue
• However: cannot really “opt out” of social
media.
• You can choose not to participate
• HOWEVER, it doesn’t mean
•
patients/customers competitors aren’t talking
about you.
If you don’t participate, you’ve lost your
opportunity to participate in/shape the
conversation
Tolerating Criticism
Tolerating Criticism
Tolerating Criticism
Employee Education and
Awareness are Critical
• Make sure policies are accessible: on your
intranet/internet
• Make sure your employees receive training
• Include examples, not always obvious
what’s a HIPAA violation or practice of
medicine
• The best policies are useless if employees
aren’t aware of them, don’t understand
them
Expect and Plan for Crises
• Speed/Reach of social media mean
crisis will happen with extraordinary
speed
• Little time to react/difficult to reign in
Expect and plan for crises
• Domino’s pizza: YouTube video showing
employees tainting food
•1 million views in 2 days
• Identify a crisis team and a crisis plan
before a crisis happens
Plagiarize!
• Build off the work of others
• Many people thinking about this
issue: many good approaches
• List of policies in written materials
Drafting Social Medial Polices
Issues to Address in Your Policy
• Use of social media during work time
• Most companies will prohibit
• Some will encourage
• Can often be addressed by
existing policies
• Can you enforce an outright ban
with mobile devices?
Stress Importance of Preserving
Customer Privacy
• Critically important, esp in privacy regulated
industries (e.g. healthcare, financial services).
Legal and brand/pr risk
• Lifecasting mentality+ speed + ease of posting
=danger
• numerous instances of healthcare employees
breaching privacy via social media (see written
materials)
• Not always intuitive how privacy applies online
• Lack of name not always enough to de-identify, esp in
smaller community
• E.g. HIPAA applies to patients who are real-life friends
• Incorporate examples into your education
Stress Importance of
Professionalism Towards
Customers
• Appropriate professionalism may be as
important as legal privacy restraints
• Employees complaining about
customers, even if de-identified can
raise brand issues
Identify Who Can Speak on Behalf
of the Company
• Let employees know who can
officially speak on behalf of your
Company
• Usually only designated PR
employees
• Others must refrain from making it
appear that they are
• Consider requiring disclaimers:
• “These are my personal views”
Address the “Blurring” Issue
• Two choices for employees:
• If engaging in behavior
incompatible w brand/profession
no identification with employer
• If identify themselves as
employees should not display
inappropriate behavior
Address the “Blurring” Issue
• Some cautions:
• NLRB beginning to restrict employers in this
area
• NLRA Section 8(a)(1): unfair labor practice
for employers to interfere with or restrain
collective activity of employees
• NLRB: talking publicly about working
conditions, wages, workplace is protected
collective activity
Address the “Blurring” Issue
• American Medical Response of
Connecticut Case
• NLRB files complaint over firing of employee
•
who criticized supervisor on Facebook
Employer’s policies:
• Prohibited employees from posting
pictures of themselves on the internet
which depicts the company in any way
• Prohibits employees form making
“disparaging, discriminatory or defamatory
comments when discussing the company
or the employee’s superiors, co-workers
and/or competitors
American Medical Response Case
• From NLRB Complaint:
• “Respondent engaged in concerted
activities with other employees by
criticizing Respondent’s supervisor
on her Facebook page.”
American Medical Response Case
• “This is a fairly straightforward case under
the National Labor Relations Act — whether it
takes place on Facebook or at the water
cooler, it was employees talking jointly about
working conditions, in this case about their
supervisor, and they have a right to do that.”
NLRB Acting GC
American Medical Response Case
• Feb 2011: Case settled.
• Employer agrees to rewrite policies
to ensure it doesn’t restrict
employees from discussing wages,
hours and working conditions
Student Transportation of America
Case
• Feb 2011NLRB files charge against
STA
• Social Media Policy was an unfair
labor practice
• Policy prohibits: the use of
electronic communication and/or
social media in a manner that may
target, offend, disparage, or harm
customers, passengers or
employees; or in a manner that
violates any company policy
Address the “Blurring” Issue
• Bottom Line:
• Stay up to date re NLRB decisions
• Can’t prohibit employees from talking
•
about terms and conditions of employment
in a concerted matter (rule prohibiting
false statements re employer)
Can’t prohibit employees from talking to
the media re ongoing labor disputes (rule
prohibiting all employee contact with
media)
Address the “Blurring” Issue
• Some cautions:
• some states prohibit employers
from regulating lawful off-duty
conduct
• MN Stat 181.938 subd 2 (no
termination for consumption of
lawful consumable products
Stress the Preservation of
Business Confidentiality
• Employees should be reminded that
they should not be discussing trade
secrets and business confidential
business information online
• Use examples: Even posting that
you’re attending a meeting with a
party you’re negotiating with can
violate NDA
Prohibit Employees from Speaking
Anonymously or Pseudonymously
• Non-legal reason: considered
dishonest and unethical in the social
media community
• Legal reason: can violate the FTC
endorsement/testimonial guidelines if
recommending your products or
services
Address the FTC
Endorsement/Testimonial
Guidelines
• Recently updated to specifically address
social media
• Endorsers must disclose “material
connection” which includes:
• Free product to review
• Employment relationship
• Enforcement action v Reverb
•
•
Communications
Pr firm employees post positive reviews of
clients’ apps on iTunes
Deceptive b/c no discslosure of
relationship
Address the FTC
Endorsement/Testimonial
Guidelines
• Removes “results not typical” safe
harbor. All claims must be
substantiated
Restrictions on Lobbying/Political
Activity
• For tax-exempts:
• IRS regs prohibit TE’s from
supporting candidates in campaigns
and other types of political activity
• Make sure those participating in
social media on behalf of your TE
company understand what is and
isn’t permitted
Prohibit Harassment of Other
Employees
• Employees talk to and about each
other on social media’
• Remind employees to follow
applicable policies re mutual respect
and non-discrimination and
harassment online.
• Employer can be liable if aware of
this harassing behavior occurring
online and does not take action
Respect Intellectual Property of
Others
• Make sure those using social media
on your company’s behalf
understand the rules
• Especially copyright and fair use
• Misuse of materials of others can
lead to infringement claims
Explain the Rules Regarding False
Advertising
• Spell out what can and cannot be
said about your own company’s
products, as well as your
competitor’s products
• This is another reason to be clear
about who can and cannot speak on
behalf of your company
Dangers of Not Having a Social
Media Policy
• “Placenta Case”
•Nursing dismissed
for unprofessional
conduct for posting
to FB
•Court reinstates:
•“Photos are taken to be
viewed, and if the
students were given
permission to
photograph the placenta,
it became irrelevant what
they did with the
pictures.”
•
More info
Twitter:
@danielg280