Social Media - Are You Prepared? Checklist

Social Media
DOs & DON’Ts
2013 Luxury & Fashion Industry Conference
Conrad Hong Kong | Hong Kong
18 October 2013
Anna Gamvros, Hong Kong
Nadine Maurellet, The Hongkong and Shanghai Hotels, Limited
Lothar Determann, Palo Alto
Social Media – What is it (for)?
© 2013 Baker & McKenzie
How Companies Use Social Networks
Increase communication, collaboration, productivity of employees
Reach and engage candidates, employees who grow up with
Social media marketing is different - it is
conversational, less controlled.
Encourage customer postings about companies
and their products which are communicated
instantly to their friends
Encourage customers to share things about
themselves, e.g. photos, videos, ideas and information
Offer promotions and benefits if you “Like” them
or say nice things about their products
Use location based services to contact user locally and let user’s contacts know where they
Track customer search behavior and social media use in order to deliver advertising
targeted to consumer’s interests
All of these uses are of great value in communicating a company’s message and
encouraging customers to make it viral, but also raise serious privacy and data
protection compliance issues
© 2013 Baker & McKenzie
Check: Ready for Social Media?
Are you using the social media platforms you need and for appropriate purposes?
Do you own what you think you own?
Is your data privacy compliance program ready for social media?
Are your employee policies up to date with respect to social media?
Does your HR group know what to do?
Is your IT department on top of new
social media technologies?
Are sales and marketing under control?
Have you considered industry-specific,
regulatory requirements?
Are you regulating too much?
10. Are you training enough?
11. Do you know the latest and coolest
social media application?
© 2013 Baker & McKenzie
Advertising and Customer Engagement
– mere presence: advertising and consumer protection
– push: labelling, product liability, misrepresentation and
trade practices laws
– viral marketing: anti-spam laws
– interactive: astroturfing, IP infringement, public policy
© 2013 Baker & McKenzie
Case Study – Who owns the buzz?
MultiNatCo grows sales of its microbrew with a very successful, young and dynamic
marketing team that includes:
Rolf who already has 66,666 followers on Twitter under his
@muchbetterbeer account, but then Rolf leaves for
BigBadCompetitor and keeps using his account,
Susi who ocassionally uses her Facebook account to update her
friends about special beer tasting events, but who is not amused
about Tom keeping up the updating business while she is on
maternity leave for a while,
Ulrich who pays for upgraded LinkedIn accounts for all employees
who want one (presuming that this means the connections belong
to MultiNatCo now),
Victor who instructs co-workers to write positive Yelp reviews about
MultiNatCo and key restaurants that feature MultiNatCo beer,
Walter who manages investor commmunications (in close
cooperation with legal) but also runs a private blog where he talks
more freely about how well the company is going and the beer
markets more generally.
© 2013 Baker & McKenzie
Case Study - Checklist
– Decide whether to allow personal social media
accounts for certain business purposes and / or
establish proprietary social media platform
– Prepare form agreement for employees about account
/ information transition upon termination and verify
compatibility with social media platform terms of use
– Update rules on prior legal review requirements for
employee communications and cover reviews, blogs,
social media posts
© 2013 Baker & McKenzie
Case Study – Discrimination, Bullying & Harassment
Your company has launched an internal social media networking site, OurPlace,
for employees to connect and share ideas with colleagues.
The company has installed monitoring software to check OurPlace for offensive
or potentially discriminatory language. The software has picked up the following
Employee A You know, I was here til midnight last night
finishing that report for Bill after you left…
1 day ago
Employee B Sorry about that – I had to get home in time
for the child minder. Thanks v much for sorting it out!
1 day ago
Employee A I guess I shouldn’t be surprised really – you
working moms are such slackers
1 day ago
You also discover further posts where A describes B as a “lazy b*tch”. B has not
reported any of these posts to you
© 2013 Baker & McKenzie
Checklist - Discrimination, Bullying & Harassment
Employers can be vicariously liable for discrimination and
harassment by their employees
Your social media policy should take steps to prevent such
behavior, and should:
Remind employees that
discrimination and
harassment is
prohibited, including in
internal and external
social media sites
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Broadly define
discrimination and
Clearly explain the
potential sanctions for
breach of the policy,
up to and including
my profile
Case Study – Background Screening
ACME, a US multinational approximately two months away from applying for
Safe Harbor certification, posts a "help wanted" ad on its website for a
position in the UK. Gil, a resident of Maryland, submits a humorous and
compelling e-application from his hotel in Paris. Gil's clever application is
routed to Jane, ACME's London based recruiting coordinator, to her friend
Sam, an independent contractor assigned by his employer to help install a
new HR data system at ACME's US headquarters, with the cover note "I
guess you aren't the only State U alum with a sense of humor.“ Sam does a
quick Google check on Gil, and becomes Gil's Facebook friend two days
later, thanks to an introduction from a mutual friend and fellow State U alum.
Sam's Facebook profile lists his current employer, but does not mention
anything about his assignment to ACME. In reviewing Gil's Facebook page,
Sam learns that Gil has filed and settled two discrimination charges against
his last two employers, is about to file bankruptcy due to credit card debts, is
a devout member of a small religious sect that believes Doomsday is
imminent, and is seeking prayers as he begins treatment for a recently
diagnosed neuromuscular disease. Gil asks that his "friends" keep his
diagnosis under wraps, as he has yet to break the news to his parents and is
waiting for the right time to do so.
Sam emails Jane at her ACME address as follows: "Subject: State U Alum
with Sense of Humor Jane, Don't put me in the same boat with this loser.
He's got many issues—radioactive."
The next day ACME informs Gil that he will not be among the finalists for the
Does ACME have any legal risks?
© 2013 Baker & McKenzie
End of the world
supplies on sale!
Happy birthday!
Call my
bankruptcy line
Checklist: Social Media and Background Screens
Create locally compliant guidelines for conducting background
Harmonize the screening process with the employer's antidiscrimination policies
Restrict screening to HR and authorized vendors
Establish compliance program to allow for cross-border personal
data flows
Monitor local law developments--US law is especially problematic
in this space
Segregate the decisionmaker from the investigator
Ensure that the decisionmaker has "clean hands"
Beware the long arm of FCRA
© 2013 Baker & McKenzie
Employee Monitoring: US
Generally, can destroy expectation of privacy, but:
Electronic Communications Privacy Act
State anti-wiretapping statutes
Common law claims, e.g., invasion of privacy
© 2013 Baker & McKenzie
Employee Monitoring: ROW Requirements
Europe: Different culture and stricter rules
Some of the challenges:
Live monitoring
Preventive monitoring
Data related to private use
Employee consent
Blocking statutes
Adequacy requirement for international data transfers
Special confidentiality requirements (works council, DPO)
Two party consent requirement
© 2013 Baker & McKenzie
Employee Monitoring: EU Checklist
Transparency, proportionality, limitation of purpose
Works council consultation
Works council agreement
DPO involvement
Acceptable use and monitoring policy
DPA filings/authorization for data transfers
Retention periods
Processing registers
© 2013 Baker & McKenzie
Making Your Social
Media Policy
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Considerations When Drafting a Global
Social Media Policy
Prescribe, prohibit or permit?
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Contents of a Global Social Media Policy
− Monitoring
− Ownership of Social Media Accounts
and Relationships
− Protection of Confidential and
Proprietary Information
− Personal Use During Working Hours
− Discrimination & Harassment
− Defamation & Denigration of the
− Endorsements
− Direct Marketing / Spam
− Consequences of Violations of the
Social Media Policy
© 2013 Baker & McKenzie
Structure of Global Social Media Policies
– General vs. Job-Specific Protocols
– Global vs. Regional vs. Country-Specific Policy
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Implementation of a Global Social Media
Policies in ROW
– Translations
– Notification and Consultation with Works Councils and
Employee Representative Committees
– Implementation as Part of Internal Regulations or Work
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Enforcement and Training
© 2013 Baker & McKenzie
© 2013 Baker & McKenzie
Social Media
DOs & DON’Ts
2013 Luxury & Fashion Industry Conference
Conrad Hong Kong | Hong Kong
18 October 2013
Lothar Determann, Palo Alto
Anna Gamvros, Hong Kong
Nadine Maurellet, The Hongkong and Shanghai Hotels, Limited