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Social Media and the Law: 5 Questions For… Andrew J. Hollander, Of Counsel, K&L Gates

May 17, 2012

Hollander_Andrew_headshotIn an age when an individual can improve or harm an organization's brand in 140 characters or less, having a clear understanding of the social media law of the land has never been more important.

"It's understood by employers that employees are going to use social media," Eric B. Meyer, an employment lawyer based in Philadelphia, recently told the Wall Street Journal, "but hopefully they won't run afoul of their company's rules and potentially harm the employer." That's exactly what happened recently at the fashion retailer Francesca's Holdings. The Houston-based company's CFO, Gene Morphis, was fired after "improperly communicat[ing] company information through social media." Apparently, loose lips do sink ships.

But what about other sticky situations in which an employer might find him/herself that are not covered by existing law? For example, can someone who managed an organization's Twitter account take the account's thousands of followers with her when she leaves? And who really "owns" the passwords to a company's blog and social media accounts?

Situations like those may not be covered by law, but there are things an organization can do to protect itself in the still-evolving world of social media. For starters, explained Andrew J. Hollander, of counsel at K&L Gates, during a recent 501 Tech NYC event hosted by the Foundation Center, an organization can have a social media policy or clause attached to its broader company guidelines that outlines who owns what.

After the event, PND had a chance to chat with Hollander about copyright infringement, the simple things nonprofits can do to protect their brands online, and a few good social media clauses worth embracing.

Philanthropy News Digest: The Library of Congress has begun archiving public tweets. Who "owns" an individual's or organization's tweets?

Andrew Hollander: There's an argument made that public tweets are just that -- public -- and for that reason they can be re-used for different purposes. Some people may have privacy concerns about how that publicly available data gets used. But are the tweets at the Library of Congress easier to re-tweet than those published to your or your organization's public Twitter feed? Yes. That's just one of many issues that need to be addressed, but like many things in social media law there may not be a clear answer right now.

PND: What is the single biggest intellectual property concern for nonprofits that rely on social media platforms such as Facebook and Twitter?

AH: Copyright is always a concern when it comes to the Internet. It's sometimes easy, too easy, to make a copy of a copyrighted work and put it in a different place. What organizations should do before hitting "Ctrl+C" is ask, Do I have the right to take this copyrighted work and put it on my Web site or platform? There are fair-use issues that can be raised, but as a general rule one should be careful not to over-rely on fair use as a defense.

But the broader answer is that there are things nonprofits can do to enhance the protection of their rights, and one of those things is to have understandings with their employees and third-party partners in which it's clearly stated -- and documented -- who will own what IP rights that might arise during the course of employment or a contractual relationship. I always recommend that clients be mindful of these things at the start of a new relationship, and to hammer out an understanding to the extent that they can to avoid problems later on.

PND: What are some simple things a nonprofit can do to protect its brand online?

AH: One is to have a terms-of-use license giving conditions whereby third parties are able to use the nonprofit's brand or trademark. Nonprofits also can see whether there are third parties using their brand as a username online through Web sites like KnowEm.com. Another way to monitor their brand online is by using a site like socialmention.com, which is a search engine for mentions on social media platforms in the way that Google is for the Web as a whole.

PND: What are some examples of good social media clauses?

AH: There are many, but a few come to mind. IBM has a clause that essentially says, "Here are our social media guidelines, but note that these guidelines are part of our overall business conduct guidelines for employees." Basically, they're saying that just because you comply with their social media guidelines or understand them doesn't mean that they replace the broader company guidelines. Intel also has a good clause which sets up a nice framework that essentially says, "Disclose but protect." Disclose who you are, your role and what youre doing, and be honest about it; but protect your company's intellectual property, protect confidential information, and use common sense. I think that's a neat way to package things. Ford, the automaker, also has, to my mind, a nice set of social media guidelines. They give five core principles that live within an even broader set of Ford guidelines, but they're presented to employees in a visually appealing way.

PND: What are some of the pitfalls organizations should try to steer clear of?

AH: One has to do with employment and labor law. The National Labor Relations Board has said to certain employers who have terminated employees based on their social media activities that they couldn't. And the reason they couldn't is because the employees were engaging in activities protected by the National Labor Relations Act. As a result, some of these so-called Facebook firings have been found to be improper, and some of the social media policy clauses that these employees were terminated under were found to be too broad. For example, a clause may say you shall not disparage anybody in any way. But the National Labor Relations Board would say that's a little too broad, because you have to enable an employee to exercise his or her rights under the National Labor Relations Act.

-- Regina Mahone

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