Oh Hey, Want To See A Great Social Media Law Final Answer?

Final-examsThis is the fourth year I’ve taught my Social Media Law class at the University of Texas School of Law and each year I’ve posted the final exam here on the blog.  I’ll be doing the same for this year’s exam later in the week, but I wanted to do something I hadn’t done before: post a model answer.  I presented this answer to the class this year after getting permission from the writer, the top score in the final and class last year.  Worth Carroll wrote the answer so all credit to him.  If you want to re-read the questions he’s answering, here is the final exam from that year.

Would you have answered differently?  When I went over the answer in class there were certainly points that came up that weren’t in this answer, and this answer also had points that the class hadn’t considered as well.  Taking a law school exam is always a difficult task so it’s hard to say what you could do in the three hour situation, but this was a fantastic set of answers to the questions.  Take a read after the break and see if you agree.

Answer to Question One

Dear Mr. Knowslittle:

Good afternoon. Knowing that you are a fan of Chef gives me much confidence that you and I will have a wonderful working relationship in your social media endeavors. That is, there are two things I am passionate about: cubanos o medianoches, and conservative but effective approaches to online presence and management.

Hopefully, we can chat about the risks and rewards mentioned below over a medianoche and a cafecito: just so we both know we aren’t Catfishing each other.

(1) PU2’s business model Opens itself up to potential FTC violations.

PU2’s Grassroots model provides benefits. First and foremost, PU2’s reliance on social media users as the engines of its advertising campaign is a sound marketing decision. In the business, we call organic (or at least the appearance of organic) marketing “grassroots” campaigns. The theory is, that if we can get affiliated users to convince other unaffiliated social media users to promote our brand or action, the unaffiliated members they reach will do the same–ad infinitum. That is, if we can get social media users to conduct our brand marketing for us, the reach will be far, and the effect will be great.

This phenomenon doesn’t only occur in the marketing context, but it can be seen throughout popular culture. From Winnebagoman to Larry “the Dickman” Taylor, the viral phenomenon is not a new one. However, with the advent of social media and through its proliferation, viral waves have greater effects and, now, are a common method of disseminating brand ideology.

You may have seen this phenomenon in Chef, when the main character tweeted his rant to the critic at night, and, by the next morning, his tweet had been seen by tens of thousands of social media users and internet viewers.

How could this be? Wasn’t, at that point, the Chef a new twitter user and didn’t he only have a handful of followers? Yes, but the viral phenomenon kicked in. The internet saw something shocking and potentially devastating to a man’s life and career, and the internet took over. The internet likes carnage. The internet likes pain. And so, the internet shared Chefs meltdown with everyone it knew. Within a few hours, Chef’s poor social media choice was known to all with a computer.

This phenomenon is a good thing for PU2, and it has done well to incorporate it in its model. However, it does create risk.

Compensated marketers must disclose

Just like you and I know of the great potential these grassroots campaigns have for marketers, so too does the FTC. Due to companies faking organic grassroots movements (called Astroturf) with great success (a slight increase in rating in a peer-driven/peer-to-peer reviewing system can increase revenues by 7-10% per year), the FTC now has its eye on Astroturf marketers, like Nev’s Catfisher has her eye on Nev’s pretty little hipster glasses. And for all the negative imagery of Astroturfing, that is what PU2 is. As such, we need to comport with the latest guidance the FTC has provided for using online (organic) marketers.

Disclosure

When PU2 selects its key social media users to begin its cascade campaign, I imagine it compensates them in some way. Regardless of how they are  compensated, these compensated parties must disclose this relationship with their followers. These disclosures can’t be trivial—they need to actually disclose. We, too, need to be upfront with our marketing strategy (that is, we need to rid ourselves of any appearance of deceptive practices). Our marketing reach doesn’t need to be sneaky: everyone knows that businesses use these techniques. We need to own it (lest we end up like Honda Eddy–we can talk more about him over our cubanos).

All in all, you and I will need to go over the FTC guidelines in detail to make sure we don’t get slammed with a law suit

(2) Edgy is good, but Edgy toes the, well, edge

The internet likes edgy. Edgy is why we click on links. Edgy is what turns something a user scrolls past to something a users clicks on, shares, and promotes. PU2 has done a great job incorporating this phenomenon in its campaigns.

But, you have to remember, the internet is a dark place. The internet can turn something like a “Make it Happy” Coke campaign into a racist, eugenics-themed cartoon publication of Mein Kampf. The internet turns high quality air-travel into a vulgar pornography. The internet turns praising the efforts of the Boys in Blue, to a slideshow of police brutality and oppressive state action.

You may have seen this dark side with Catfish, as the internet took love and turned it on its head—turned it into a giant trick. (* *side note* * Some argue Catfish itself was a big marketing trick: that it took the edginess of seeing a love-hungry man duped by a Coloradan with too much time as a marketing tool, and that the entire movie was a trick on the viewers. We can talk about this over lunch).

As such, PU2 must be careful. Any online campaign proposed by PU2 should be run by me, and a team of middle school and high school boys, so as to prevent the internet cannibalizing us.

(3) Organic may not be possible anymore

Facebook and Twitter, like you, the FTC, and me, realized the power of organic marketing and decided it wanted a piece of the pie. So now, they are shutting down companies’ access to organic marketing (or reach) by requiring us to always pay to promote our brand or story. There is no more free rides on the food-truck RV in this regard, so PU2’s model will have to evolve to engage in paying for online promotion (especially as it relates to sponsoring tweets and posts from affiliated and unaffiliated users).

(4) Memes can violate copyrights and rights of publicity.

Copyright As you likely have seen, one way organic marketing takes off is when users post edgy or funny content incorporated in a static photo. If users further our event by using a meme that contains copyrighted material, we may be opened-up to third-party liability in a Copyright infringement suit. As such, we will need to police and monitor the content related to our campaigns to protect us form risk that is sure to occur.

Right of Publicity Like users sharing copyrighted memes, the internet also likes to share pictures of celebrities doing things to get its point across. Because this likely violates the celebrity’s right of publicity (they want their piece of the pie, too!), we will also need to monitor our user’s content to distance ourselves from this risk, or to take corrective measures when it happens (especially if the celebrity is Lindsay Lohan—less so if it is Will Ferrell).

As you can tell, the hazards and benefits of the internet are many–too many for me to list here. As such, we should chat over that pressed sandwich soon. Perhaps the Cuban Sandwich Cafe off of N. Lamar? Let me know your availability.

Best–

Answer to Question Two

Dear Mr. Knowslittle,

Just as I discussed in the email before our delicious lunch, celebrities always want their pieces of the pie. They can be greedy and extremely litigious. As a result, we should tread very lightly with Arnie, because he and his team of lawyers will likely be back.

(1) Do not post or promote Arnie’s pictures unless we get his express permission.

I know we didn’t take the pictures. I know he participated in our fun. I know it only seems fair. But we cannot post those photos of Arnie unless (likely) we pay him for his permission.

Whether you like his politics or not, Arnie has the right to control his own image or likeness in commercial exploitation. That is, he and his team, get to say who uses his persona, face, muscles, and likeness, for their commercial gain. Arnie allowing companies to use his publicity for commercial gain—always—results from Arnie’s own commercial gain. That is, he needs to be paid.

Basically, when analyzing whether we need to get a license for using a celebrity’s image/likeness/etc., we need to ask one central question: does our use sabotage the celebrity’s commercial use? In this case: yes. Arnie could have sent his pickle-throwing exploits out to the highest bidder. That is, our competitors would likely have paid Arnie to throw pickles for them, so we don’t get his gherkin-hurlin’ for free.

The good news is, Arnie’s rights of publicity can be obtained through an enforceable contract—which can likely be constructed to apply to this entire campaign and perhaps all of our campaigns.

The bad news is, if we don’t’ get Arnie’s consent, PU2 may be terminated by lawsuits. It doesn’t matter that Arnie was truthfully there–A jury composed of Arnie’s prior constituents gave Nicky Sixx $600K when a company used a picture of Sixx giving an award to one of its sponsees in loose conjunction with one of its ad campaigns. It won’t matter if it is a short shot of Arnie flicking dills, fair use will not apply (I can tell you about the Zachinni case next time we see each other). Also it doesn’t matter that few millennials (our target audience) know of the tour de force that is Arnie (Mr. Universe, The Terminator, Kindergarten Cop, Twins, etc)–even minimally famous folks have been successful in right of publicity suits (among them, Astronauts have successfully sued easy-listening artists when photos of their space suits are used in connection to commercial activities).

So whatever you do, do not allow any PU2 member to post, like, retweet, share, or poke any content that has Arnie’s face or likeness in conjunction with our pickle campaign. If you do, it will likely be a legal-tumor (cue “it’s not a tumor!”).

(2) We do not have to take down any content that others have posted on various social media platforms.

Arnie cannot require us to remove his photos from social media sites, because we likely do not have that power.

Although most social media sites–in their terms and conditions or terms of use-allow the platform to remove user content at its discretion or allow users to remove its own content, it is unlikely that it gives third parties the power to unilaterally remove another user’s content. Although we, like any other user, likely has the ability to flag certain content for removal (if it is obscene, violates the law, or violates the platform’s terms and conditions), that is likely as much power as we have.

As a result, we should likely go over the various platforms’ terms and conditions, and communicate these limited powers to Arnie’s legal team.

(3) However, if we can orchestrate a mass-removal of Arnie’s photos, it will likely  go viral.

There is a phenomenon, called the Streisand Effect, which causes content to go viral when a user attempts to take it down. For instance, when Barabra Streisand tried to legally remove a rarely-seen picture of her house that was inadvertently captured and posted on google maps, it went viral and was viewed hundreds of thousands of times. The  internet hates when users try to remove content or hide something. As a result, we could try to capitalize on this phenomenon by agreeing to Arnie’s demands.

We could: (a) issue a PR-blast campaign telling all our followers to take down any content featuring Arnie in conjunction with our pickle campaign; (b) contemporaneously remove any mention of the pickle throwing campaign from our sites, platform profiles, and PR material; (c) issue statements to the press telling all listeners and readers to disregard any photo of Arnie in conjunction with PU2 and apologize for our pickle throwing actions; and (d) flag all content containing Arnie and pickles.

I know that removing all mention of this campaign seems scary and risky, but know that there are millions of internet users on obscure sites like 4chan and Reddit, that are sitting in their mom’s basements across the U.S. just waiting for someone to try to delete something from the internet. When we delete, they will step in, screen shot the content, and they will post it everywhere they can think of. This will create a viral reaction, and Arnie will be unable to stop it (and it will leave our hands relatively clean). Basically, it will be using the internet’s evil powers for our good.

But we have to act quick: the internet’s attention span is extremely short.

(4) Regardless, we should give a statement denouncing any affiliation with Arnie, or his Affiliation with us.

At the very least, we should be honest about Arnie’s non-affiliated nature with PU2. The faster we act, and clearer we are with the public, the less likely a jury or judge will think we willfully infringed Arnie’s right of publicity.

Answer to Question Three

Dear Mr. Knowslittle and Ms. HR:

This email is in regards to PU2’s employment actions in connection with Helen Clueless. Before I begin, know that this email is in regards to anticipated litigation, and thus is privileged attorney-client communication or, alternatively, protected work product.

That being said, PU2 can likely retract Ms. Clueless’s offer without liability, however, that does not mean there won’t be backlash. That is, we will likely beat the wrap, but we won’t beat the ride.

(1) Not reading candidates’ social media profiles is, generally, a good practice.

First and foremost, it is generally a good policy not to view job candidates’ social media content when determining whether or not they should be offered employment. Social Media content likely contains information about whether a candidate is a member of a protected class (sex, gender, sexual identity, pregnancy status, race, national origin, citizenship, religion, age, disability, or genetic makeup). The less the people in hiring positions know about these characteristics, the less likely we can be held liable for discrimination.

(2) However, this safeguard may not be feasible for social media positions

Point (1) is a good rule when hiring lawyers, bankers, teachers, or the like, but when hiring an employee whose social media presence is the crux of the position, it is inadvisable for PU2 to stick its head in the sand and hope her online presence aligns with PU2’s values and mission. That is, it is too big a liability to give a candidate a corporate microphone without knowing what she’s said aloud in the past.

So, although it doesn’t comport with the traditional “best practice” of staying away from social media when hiring, it is a necessary risk for social media-specific candidates. PU2 could proceed in two fashions for social media candidates:

(a) For all social media-specific candidates, PU2 could hire a third-party consulting group to screen candidates’ social media profiles for content that doesn’t comport with PU2’s code of conduct and corporate vision. This third party could then rate the candidate on non-discriminatory characteristics, such as the alignment with PU2’s code of conduct, among other non-discriminatory features. The third party will then give HR the rankings/ratings, who then can incorporate this analysis in its hiring metrics.

(b) PU2 could have a screening process that screens people engaged in hiring decisions from factors that could potentially be seen as affecting discriminatory motives. This could be a team of PU2 members who go through a candidate’s profile, and “blackout” any mention of potentially protected features, before the hiring team is allowed to view the profiles.

Either of these methods would prevent a situation like Ms. Clueless’s from arising, without exposing ourselves to employment discrimination liability.

Even if these methods are employed, it may not catch all unprofessional social media users. That is, some social media users will have private sites and platforms. If this occurs, do not ask for, or require, the social media user to give up his or her password or allow PU2 access to their profiles. Many states are outlawing this practice, and it is, generally, a bad PR move. If a candidate’s social media profile is set to private, he or she may not be an ideal candidate for a job requiring social media diplomacy.

(4) Ms. Clueless’s offer may be retracted.

First off, thank god for at-will employment. The fact that we offered Ms. Clueless a job and she accepted really doesn’t mean much. We don’t owe her anything and are not bound by contract to her working for us. That is, we can fire, or refuse to hire, her for any reason: so long as our reason is not for one of the enumerated protected reasons. We also can’t fire her as a result of her engaging in a protected activity. That is, we cannot retaliate against her for engaging in some type of organizing or unionizing, among other things. Because it is clear Ms. Clueless was fired for overtly non-discriminatory behavior that was not concerted activity, we can likely terminate Ms. Clueless (or revoke her offer) without liability. However, Ms. Clueless may still sue.

Not Discrimination:

Due to how a discrimination suit proceeds, Ms. Clueless will likely prevail at the prima facie summary judgment case, but we will likely prevail when required to present a non-discriminatory reason for the employee’s termination.

As the plaintiff, Ms. Clueless will have to make out a prima facie case of discrimination: she will have to offer some evidence that she was fired, or refused employment, due to some protected characteristic (race, sex, pregnancy status, etc.).  Because Ms. Clueless will likely discover in discovery that HR combed-through her social media profiles before revoking her offer of employment, she will likely be able to offer some evidence that PU2 revoked her offer due to some protected characteristics.

This is because social media sites contain everything about a person, and an avid and reckless poster like Ms. Clueless likely has posted many things that group her into a protected class. Has she posted content regarding her sexual orientation or gender: probably. Has she posted content regarding her religion, or lack thereof: undoubtedly.  Has she posted content regarding her offspring or aversion to: yes. This content is likely there, and, viewing the evidence in the light most favorable to the plaintiff (which is what happens at summary judgment), she will be able to offer some evidence that her revocation was due to a discriminatory reason.

However, once she presents her case, all we have to do is provide a valid, non-discriminatory, reason that we revoked her offer. Easy: she badmouthed our company and its corporate vision to thousands of her followers. Or, her use and endorsement of (still illegal in Texas) cannabis was against PU2’s code of conduct. I am sure there are other, just as egregious, examples of why Ms. Clueless doesn’t fit with PU2’s corporate vision on her various pages that HR likely considered before revoking her offer. We should consider these reasons, and make notes of them, in her employee file.

To me, these reasons are extremely persuasive reasons for revoking her offer (which a jury will likely agree with). However, risking a jury decision in an employment discrimination case is always a roll of the dice.

Not Protected Concerted Activity:

It could be argued that Ms. Clueless’s tweets were “concerted activities” regarding her employment. Employees, through the National Labor Relations Act, are protected from adverse employment actions related to their concerted activities regarding their employment. That is, workers are allowed to engage with fellow employees to discuss working conditions, discuss unionizing, organize, or collectively act. In the social media context, a concerted activity can be found anytime an employee discusses or gripes about work where a fellow employee can comment.

This broad understanding of concerted activities on social media makes firing an employee for complaining about PU2 on social media an extremely sticky issue.

Indeed, in a case revolving around an EMT company and driver, the NLRB argued that disciplining a worker who posted a criticism on Facebook (“my boss is a scumbag and a dick”) violated NLRA protections. Likewise, the NLRB has even held “likes” to be concerted activities deserving of NLRA protection. So long as a Facebook Rant had a “clear mutual aid” objective, then they likely are protected. These rules are true whether the workplace is a “union shop” or not (Hispanics United of Buffalo).

It seems that, because Ms. Clueless’s rants began before her employment did, and they did not address concerns common to workers (wages, conditions of employment, etc), they did not have concern “clear mutual aid objectives.” She likely knew no other workers at the time she made her Rants, and it is unclear whether she had accepted the position when she made the Rants. Most centrally, though, the NLRA protects workers from engaging to better the workplace; it does not protect workers that badmouth a corporation’s corporate vision.

As such, Fire Ms. Clueless–she is too much of a liability. However, expect legal backlash.

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