Category Archives: Social Media Lawyers

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.

Continue reading

Leave a comment

Filed under Affiliates, Celebrities, Commercial Activity, Consumer Protection, CopyFUD, Copyright, Employment, Facebook, Fair Use, First Amendment, FTC Endorsement Guidelines, Instagram, Laws, Pinterest, Social Content, Social Marketing, Social Media and the Law, Social Media Lawyers, Social Media Policies, Social Media Risks, Social Platforms, Social Tracking, Technology, Terms and Conditions, Trademark, Twitter

My Awesome Announcement

I hate tooting my own horn but this is one of the proudest moments in my still short social media law career.  Please forgive the somewhat staged presentation but those who know me know that if I’m going to tell a story I need to make it interesting.

I was at the University of Texas Co-op’s law school location last week browsing the Nutshell books.  (Go with me, people.)  For those of you not in the legal profession, congrats on that by the way, know that the Nutshell series is put out by West Academic (one of the biggest names, if not the biggest name, in the legal publishing world) and is a fantastic resource for an overview of legal issues in a particular topic.  They aren’t casebooks–larger books with often edited cases to look at judicial rulings on certain areas.  Nutshells get right to the point and provide essential information on the overall legal topic.  I used more than one when I was in law school and as a practicing attorney.

But I noticed something was missing from the Nutshell section.  Can you spot it?

Can you spot what's missing?

Can you spot what’s missing?

That’s right, there’s no Social Media Law in a Nutshell.

Let’s fix that, shall we?

I’m proud to announce that I will be writing Social Media Law in a Nutshell for West Academic.  My co-author, Thaddeus Hoffmeister, is a professor of law at the University of Dayton School of Law and has previously published a book on social media in the courtroom.  His knowledge of social media litigation, evidence uses, and applicability in criminal cases will combine with my information on the marketing, content, employment and other social media uses to make this a comprehensive review of social media across all legal channels.

Doing this as a Nutshell book feels perfect right now.  There isn’t a wealth of case law on social media issues, but there are certainly cases out there.  In some areas the most fascinating legal issues are taking place outside of a courtroom so a Nutshell allows us to cover those topics in ways a casebook couldn’t.  Plus, when the movie rights get picked up we all agree that Hugh Jackman can play me.  He’s just a more talented and better looking version of me who can also sing and dance and has a better accent.  The resemblance is uncanny.

I’m not sure when the book will be released but it certainly won’t be until 2015 at the earliest.  Rest assured I’ll let you all know as the process unfolds.

Yesterday I published the 100th blog post here on SoMeLaw Thoughts.  When I look back at how much has changed in social media since I started writing about it, not just my own professional involvement, it’s staggering.  I feel incredibly lucky to take this journey and contribute to the field as well as participate in a line of books that I personally value.  To join the ranks of the Nutshell books blows my mind.

Thanks to all of my readers and friends on social media who have pushed/pulled/heckled me along the way.  An even bigger thanks to my family for putting up with my little side projects.

Now, if you’ll excuse me, I’ve got some writing to do.

2 Comments

Filed under Affiliates, Amazon, Apple, Authentication, Bitcoin, Celebrities, Charity, Commercial Activity, Consumer Protection, CopyFUD, Copyright, Criminal Justice, Crowdfunding, Cyberbullying, Ebooks, Email, Employment, Facebook, Fair Use, First Amendment, FTC Endorsement Guidelines, Google, Identity, Informal Tone, Instagram, Kids, Laws, Net Neutrality, Pinterest, Privacy, Social Content, Social Gaming, Social Investment, Social Marketing, Social Measurement, Social Media and the Law, Social Media Law in a Nutshell, Social Media Lawyers, Social Media Policies, Social Media Risks, Social Platforms, Social Tracking, Technology, Terms and Conditions, Trademark, Twitter

Social Media Law Final (You Know You’re Curious)

Because triumph.

While I enjoy many aspects of being a social media lawyer one of my absolute favorites is teaching a class I developed at the University of Texas School of Law.  This spring I taught the class for a second time to an even larger class and had many entertaining classes and conversations throughout the year.  We even had to deal with actual ice cancellations and fake ice cancellations and held one class virtually over Adobe Connect.  All in all, a fun semester.

Since my class covers a variety of legal subjects impacted by social media, the final also covers a number of different topics.  And just like last year when I posted the first law school exam I gave, below is an embed of this year’s final.  Now you can play along and imagine what you would respond if you had to take this final.  I omitted the first page which was just directions–just know it was open book and students had three hours to take the exam.  Each question was weighed equally.

Oh, and there’s a social media easter egg hidden in the final.  Let me know if you find it.

Update: Jason Ross found the easter egg first, so congrats to him!  Yes, I rickrolled my students, they just didn’t realize it.  Read the first letter of each line of the final.

 

1 Comment

Filed under Celebrities, Consumer Protection, CopyFUD, Copyright, Employment, Fair Use, FTC Endorsement Guidelines, Identity, Instagram, Privacy, Social Content, Social Marketing, Social Media and the Law, Social Media Lawyers, Social Media Policies, Social Media Risks, Social Platforms, Terms and Conditions

3 Bad Social Media Policy Criticisms

“And sit up straight when you’re composing a social media policy!”

While social media policies can certainly go too far so too can criticism of such policies.  I found that to be true with a recent Above The Law blog post Biglaw Firm Holds Associates To Strict Social Media Policy.  In a full hat tip, the post was sent to me by Scott Malouf (@ScottMalouf) who also recently interviewed me for an article about social media legal issues.   The interview went so long (because us lawyers don’t know how to shut up–case in point, look at the length of this post!) that it was divided into four parts so here’s a link to part 1 if you’re interested.

The blog post is highly critical of the social media policy put out by Milbank, Tweed, Hadley & McCoy, a large firm with hundreds of attorneys and offices around the world.   Three criticisms of the firm’s social media policy are presented in the blog post, all of which I think are going a bit too far.  I’m not sure if the tenuous arguments are just the blogger trying to be sensational or an honest critique.  In case of the latter I thought it was right to call out the attack for being short sighted.  And in doing so it may provide some guidance to others still working on their own social media policies.

Here is the first policy section criticized:

The Firm is aware that its lawyers and administrative employees may wish to participate in or contribute content to social networking websites, weblogs, internet diaries, tweets, wikis or other publicly accessible Internet forums (“Social Media Sites”) for both business and personal use. Unfortunately, Social Media Sites may create opportunities for personal and professional embarrassment, breaches of confidentiality, real or perceived violations of privacy and identity theft, and the risk of publishing views or information that may be inconsistent with the interests of one or more Firm clients, among other hazards.

The blogger does point out that much of this is true and it’s good to signal these concerns to the attorneys.  But then the post goes on to read

That said, the language “may be inconsistent with the interests of one or more Firm clients” is a little troubling. The policy correctly notes that even “the personal activities of lawyers and administrative employees on Social Media Sites may be misperceived as Firm-authorized,” but how far can Milbank go in labeling private statements as candidates for misperception? Can Milbank hold it against an idealistic lawyer bad-mouthing offshore drilling and promoting new legislation/regulation when the firm represents large energy concerns? One would hope not, but the policy reads like that’s a real possibility.

The notion that an individual might bring about some negative consequences for their employer shouldn’t be a surprise to a large blog like ATL.  There are countless examples over the past several years.  Although this blog post came out on December 9 so it can’t be faulted for not knowing the most recent example of now former public relations executive Justine Sacco and her racist AIDS tweet.  Social media content can go viral in minutes and even someone with less than 500 followers (as Ms Sacco had) can end up on the front pages of news sites in a few hours.

Milbank’s point, which the blog ignores, is that it isn’t the firm that will try and connect an individual post to a corporate position.  It’s the blogosphere and social media community that will do so.  When Ms Sacco made her tweet nobody thought that her employer believed the same thing, but there was an immediate request for a statement and the obvious need to distance themselves from such a tweet.  This is a heightened concern for an employee of a media company since their conduct on social media is plausibly connected to their work.  But the same is also true for an attorney who handles sensitive information and is supposed to be a trusted advisor.  Like it or not, a lawyer who behaves badly will call into question the firm that trusts the lawyer.  Here’s just one example of an attorney behaving badly that ended up getting his firm fired.   There are many more.

We have seen a constant blurring of the line between personal and professional life.  Despite the wealth of jokes about lawyers, attorneys are held to a higher standard.  Lawyers know this and law firms know it too.  Calling it out specifically to lawyers and telling them that their actions may create conflict for a client or firm isn’t wrong.

The second section of the policy criticized by the blog reads

Although the Firm strongly discourages any lawyer or administrative employee from disclosing his or her association with the Firm when participating in discussions or asserting opinions on a Social Media Site, if a lawyer or administrative employee discloses his or her association with the Firm in such circumstances, a disclaimer along the following lines must be included: “This material/opinion is my own and does not purport to represent the positions, strategies or opinions of my employer.”

That’s not a horrible recommendation.  The firm is encouraging attorneys to just leave the firm out of any discussions but if it comes up to include a standard disclaimer.  Although it’d be nicer to have the disclaimer be left up to the attorney and perhaps made a bit more organic, it’s not hard to see why such a large firm would just make standard text.  The blog post goes out of its way to critique this part of the policy:

Most Facebook profiles identify the person’s current employer. In that case, wouldn’t a person be “disclosing his or her association with the Firm when participating in discussions or asserting opinions” in every conversation they have on Facebook? I’m guessing this disclaimer isn’t added to every post where a Milbank associate posts about the One Direction concert they went to last night. Even though that’s horrifically embarrassing for the firm and everyone else connected to the lawyer.

First, pointing out that Facebook profiles mention the person’s employer ignores the part of the policy where the firm suggests attorneys not do that.  But even if a profile did include that information, the firm  isn’t necessarily part of the conversation.    This is why I always encourage people to disclose their employer or employment relationship if they are talking about their work.  I always hear the standard “But it’s in my profile!” or “All my friends know for whom I work!” (okay, most of them don’t say whom or even talk like that).  But the point isn’t about your friends or what they know, it’s how a post can be shared or seen by others that don’t know you or your employer.  That’s the time you want the disclosure to be built-in.

Here, the firm wants the disclosure to be built-in if you’re going to talk about a matter relating to an attorney’s job.  Which could only be talking about a client or a legal matter and you can see why they would want the disclaimer.  Trying to stretch this to a post about One Direction is overreaching.  Or, in the words of One Direction: That’s what makes it non-sensical.  (And let’s all forget I tried to make a joke about 1D lyrics, mmkay?)

The final part of the policy criticized by the blog reads:

The Firm reserves the right to monitor the activities of lawyers and administrative employees on Social Media Sites and may at any time request or require the removal of any posting or content on a Social Media Site. If conduct is in violation of Firm policies and/or is seen as compromising the interests of the Firm, the Firm may take appropriate disciplinary action.

While I think this is a bit wordy and potentially unnecessary (reserving the right to monitor?) it captures what we can imagine most social media savvy companies do already.  Perhaps they only wait for a crisis to erupt or they have a third party monitor conversations or they engage in more active monitoring on their network.  But not being aware of what your employees are saying in light of heightened risks over what your employees might say isn’t just risky but potentially really dumb.  And big law firms, successful ones anyway, aren’t dumb.  But here’s what the blogger had to say about this section:

That’s probably just meant to cover Milbank’s bases, and not a declaration that Milbank has NSA screeners checking out every Pinterest post that some Tax associate just put up. Still, welcome to the Panopticon of One Chase Manhattan Plaza! Your employer may be checking up on your private life right now and preparing “disciplinary action” for posts the firm — and the firm alone — decides cast the firm in a negative light. Or maybe they aren’t checking up. You’ll never know!

This is a fairly weak criticism because at this point you should expect a social media aware company to be monitoring social media.  That’s part of the point of being on social media.  A small part of that may be monitoring your employee’s posts, but more likely than not those posts simply fall into the bucket of monitoring the conversations around your brand.  But nobody should be surprised that a company might see an employee’s post–whether they looked for it intentionally or not is irrelevant.  That is a far cry from “checking up on your private life” and goes too far in criticizing the policy.

I’m not saying the Milbank social media policy is perfect–no policy is perfect.  But it’s a pretty good one for a law firm.  And the areas in which Above The Law criticizes it are unfair–these are real concerns for any company, let alone a law firm which must hold itself to a higher standard.  That said, there are areas where the policy could be less restrictive or wordy (or just deleted to make it shorter and more memorable), especially when it comes to mentioning other policies or rules (and if they think they need to remind their attorneys that the same rules apply on social media then maybe they need to do more than put out a memo).  I’m all for improving policies but I think taking potshots at a good policy goes too far.

Leave a comment

Filed under Employment, Facebook, FTC Endorsement Guidelines, Identity, Informal Tone, Privacy, Social Media Lawyers, Social Media Policies, Social Media Risks, Social Platforms, Social Tracking

Top 10 Social Media Legal Concerns For 2014 (Plus A Bonus!)

2014 legal risks include the very real possibility that you drop a crystal ball on your foot. This will hurt.

I’ve been privileged enough to be connected with a variety of brilliant, articulate social media attorneys around the country.  Recently one of them asked the group for their top social media legal concerns (not necessarily those of their respective employers) and in great blogging tradition I thought “I can totally steal that and make a blog post out of it!”  But, being all lawyerly, I asked for their permission first.  And then I turned it into a list because the moment you put a number on something the lizard part of your brain takes control of your clicking finger and you cannot resist.  You know it’s true.

All links are provided by me to help provide some context or background or additional reading.  But I didn’t make any links a numbered list because then you’ll never come back.

Without further obligatory filler text, here are the top 2014 social media legal concerns.  Read the whole thing and you’ll get a special bonus at the end.  It’s like the extra scene at the end of a Marvel movie except there’s no Nick Fury.  Probably.

1. Use of Other’s Content

Jim Dudukovich, Coca-Cola (and proud Vespa owner): The recent $1.2MM jury verdict in favor of Daniel Morel regarding the use by Getty and Agence France-Presse of photographs Mr. Morel had posted to Twitter regarding the Haiti earthquake could be a seminal case regarding the danger of relying on a platform’s terms of service to re-use others’ content; the fact that the media was held liable certainly doesn’t bode well for marketers, who are not entitled to as great a license as the press.

Ryan Garcia, Dell: This is a big one because there are two areas where clients can get confused.  First, when content is marked “Public” by a platform that doesn’t mean the information is truly public.  At least not all the time.  Sometimes it means that, mostly it means the content can be freely shared within that platform.  Second, the convergence of social platforms such as Facebook purchasing Instagram leads some people to think that the content can be freely shared between platforms and that’s just not the case.  They are both teachable moments but you have to remove that misunderstanding quickly.

2. Changing Promotional Rules

Chris Irving, Publishers Clearing House: Keeping abreast of ever changing Facebook promotional rules and making sure Marketing understands the “relaxed rules” are not an invitation to do everything and anything.

Jim Dudukovich, Coca-Cola: Although this one goes in the opposite direction from Facebook’s, imposing greater restrictions on marketers’ ability to conduct promotions on the platform [Pinterest].

Ryan Garcia, Dell: It’s always important to keep up with the latest changes in platform promotion requirements.  Lucky for all my readers I have guides to Facebook’s latest changes (September 2013) and Pinterest’s latest changes (October 2013).

3. Disclosures for the Convergence of Social with Mobile

Brian Abamont, State Farm: How do companies go about ensuring compliance with all of the disclosure and notice expectations, not just in terms of actually including them but also the expectations as to how they are presented in a form factor that puts real estate at a premium and has more limited presentation capabilities (e.g. just in time notification and proximity of disclosures to content). How can this be addressed with little standardization across the mobile OS environments for these types of things?

Chris Irving, Publishers Clearing House: Helping internal clients interpret and understand scope of FTC ‘s updated Online Disclosure Guidelines (while at the same time trying to fully understand what they really mean myself!)

4. Privacy, Privacy, Privacy

Chris Irving, Publishers Clearing House: Working with cross sectional compliance teams on all things Privacy.  As our digital footprint continues to grow,  expanding efforts to insure that privacy is baked in at design and that best practices can keep pace with fast growth. Issues include online behavioral advertising, keeping privacy polices current,  keeping privacy highlights pages current, understanding changes to polices and what accompany disclosures are necessary . . . . .

Brian Abamont, State FarmI would also place a strong “seconded” support behind Chris’ point about privacy and add that the rules are changing at a rapid pace across not just federal/national levels but also various states and provinces across North America and the rest of the world.  Furthermore, in some cases, the rules have been created after an alleged offense and seemingly applied retroactively, at a minimum from a reputational standpoint.

Daniel S. Goldman, Mayo Clinic: Probably less a legal  issue (at present), though I think there will be increasing regulation over time.  I think the issue is the public’s increasing concern about the data that is being collected/monetized by social platforms and by commercial entities and what can be divined about them from that data.  This plays out across many spectrums.  The most obvious is the negative reaction to targeted/behavioral ads, but also reflects a concern about analytics that is done on data that is collected (e.g. the “Target Article”).  I think there is a growing public perception that there is a digital “permanent record” about all of us that companies are mining to sell them stuff.

5. Fraud Fighting

Chris Irving, Publishers Clearing House: Expanding efforts to fight scammers and fraudsters on the internet who would use our name to deceive. Efforts include enhanced consumer education, public private partnerships and supporting stronger criminal penalties in Jamaica where a majority of these scams are originating.

6. Increased Attention to “Commercial Creep” and Transparency

Jim Dudukovich, Coca-Cola: This manifests itself in a few ways, from the FTC’s workshop on native advertising and the search for answers as to what consumer expectations are and the scope of consumers’ ability to distinguish between editorial/creative content vs. sponsored content/branded integration, to the NY AG’s “Operation Clean Turf” (investigating and penalizing the practice of publishing fake reviews).  Not to mention the attention the NAD has placed on native advertising/transparency (eSalon and Mashable/Qualcomm).

7. Social Behavioral Advertising

Brian Abamont, State FarmTypically, [behavioral advertising] has applied to web based activities and were easily covered by privacy policy and “About our Ads” information pages.  As the level of information from social is much deeper than a typical web site visit and marketers looks to make more advanced use of that information, how do businesses present proper consent/disclosures in the social platforms?

8. Reputational Public Relations and Marketing on Social Media

Jim Dudukovich, Coca-Cola: We’ve seen more and more instances in which the speed of social media marketing has trumped judgment, and major brands, either directly or through agencies, and sometimes even accidentally, have pushed out messaging that they later regretted (and perhaps wouldn’t have published had they engaged in a more rigorous internal review process).

Jessica Fredrickson, Walmart:  Blurred lines between marketing and reputational PR. Our clients are increasingly using reputational “advertising” to promote our good works (#RealWalmart). Whether these messages translate into sales isn’t clear and how these messages should be managed through a review process and with appropriate disclaimers is not consistent. 

9. Changes to TCPA Express Written Consent Rules

Chris Irving, Publishers Clearing House: Providing internal guidance to clients on the changing TCPA consent requirements applicable to text messaging campaigns as well as the necessary vetting for third party ads appearing on our sites where there is phone collection.

10. Crowdfunding

Ryan Garcia, Dell: The JOBS Act changes continue to come in and we have a market where many more people are comfortable with Kickstarter and other crowdfunding platforms.  The possibility of actual equity investment for the masses, as opposed to paying for items that help fund a project, has huge positive and negative ramifications.  People getting upset over late deliveries for a Kickstarter project are one thing–thousands of equity investors being upset over the direction of a brand new company is another altogether. Here’s a longer post on the subject from Perkins Coie.

And here’s your bonus as promised in the headline (and at no extra charge to you!).  Here’s a list of the top social media legal issues as presented by Mark Bisard (here’s his Twitter because he’s social!), social media and general digital guru for American Express.  These are all the details he provided or else he could have been incorporated into the main list, but instead it’s a bonus list for you. And there’s 16 things here, which makes it approximately 60% longer than the list above!  Enjoy and happy holidays!

  • Year of the Hashtag
  • Selfie is word of the year (see reputational risk parallels with Obama photo)
  • Internet of Things  (TRENDnet and FTC workshop)
  • Virtual Currencies (Largely BitCoin but also push to have VC like Farmville regulated like other FIs)
  • Mobile-Social Convergence results in Net Domination (or staggering blow in battle between search and social)
  • Real Time Marketing (Oreo-SuperBowl and West Jet type marketing, Multi Screen viewing consumption trends, internal agile and lean ux organizational changes)
  • Evolution of Cause Based Marketing to Issue Based Marketing (I made this up, but think Haiti relief on over to the surge of woman’s issue ads like Pantene, Goldblox, and  etc)
  • Data Security (spooky Aaron’s rental case, Blackberry’s death means more BYOD, President’s Exec Order, zip code cases, Hacks on big social platforms, Living Social’s 50 million person breach, the largest financial data breach in history (160 million credit card numbers stolen, but damages still hard to prove for consumers)
  • Rise of Snapchat and rejection of FB offer (new kid in town?)
  • Reed Hastings – Netflix- SEC response
  • Platform, rules and feature changes (FB, Pinterest – FB buys Instagram, Yahoo buys Tumblr, Google buysWaze – iOS7, new gTLDs and wearables – offers and gaming platforms like Groupon and Farmville struggle)
  • Regulators do their best to catch up and evolve (FTC, FFIEC, SEC, TCPA, California, State Password Protection laws, and even P-1A Visa issues for professional gamers signal evolution)
  • Transparency is clear trend (Operation Clean Turf, Native Advertising workshop, FTC’s renewed interest in black hat search practices, FTC action against spammers
  • OPP – “Public” – AFP & Getty case, GoldiBlox v The Beastie Boys saga (we were right—there’s a difference between publicly “accessible” and “publicly available for any damn thing I want” – shocker I know)
  • Big Surveillance – Big Data (big news, little in the way of change – Big data becoming legit biz practice but still fighting rep battle, Tech Titans letter to President is interesting, Path case and use of ECPA’s Wiretap Act and Store Comms Act to attack Google and others also interesting)
  • The Wallet Wars I think are the biggest news of the year.  Huge array of players/participants, consumer options.  Ready to burst.  Regulators are weighing in.  Bigger than VHS vs. Beta.  Hopefully beta wins this time.

Leave a comment

Filed under Commercial Activity, Consumer Protection, Copyright, Crowdfunding, Facebook, FTC Endorsement Guidelines, Google, Identity, Instagram, Laws, Pinterest, Social Content, Social Marketing, Social Media and the Law, Social Media Lawyers, Social Media Risks, Social Platforms, Social Tracking, Terms and Conditions, Twitter

My Remarks At The WOMMA Summit

Because I couldn’t make it to the WOMMA Summit, I had a friend read my remarks. Poor guy.

This blog post is a bit different. Mostly because it isn’t a blog post. Instead, I was supposed to be in Las Vegas this week for the WOMMA Summit but I couldn’t make it. I had some slides for the panel I was a part of (the first panel I’ve ever been in with its own trailer) so I prepared some comments and had my friend and co-panelist agree to print out my remarks, seal them in an envelope, and read them aloud for the first time at the summit. The [CLICK] directions were for him to advance the slides, so it doesn’t make much sense without the slides, but I’m printing them as proof of Jim’s reading ability.

Greetings, WOMMA. This paper was written by Ryan Garcia and is being read really quickly by Jim Dudukovich because we’re certainly behind schedule by now. Unfortunately, due to some health issues, and not AT ALL because Ryan owes a small gambling debt to a man named Shifty who only has one eye, Ryan was unable to travel to Las Vegas this week. Jim has graciously volunteered to read these remarks as he guides us through Ryan’s slides.

Rest assured, good WOMM-ites, that these remarks are being read as written. For example, Jim Dudukovich is a bit fat poopy head. See? Just as written. And if you have any doubts then feel free to check the full transcript of Ryan’s paper over at somelaw.wordpress.com (being published right this second).

So you should have a giant War slide up on the screen. Awesome. Now I, Jim Dudukovich, will sing to you the immortal words of Edwin Starr when he sang: War!

[CLICK]

Huh. Yeah.

[CLICK]

What is it good for?

[CLICK]

Teaching you about unknown potential social media opponents and giving you tips on keeping the peace after a social media crisis.

I love that song.

[CLICK – NEW SLIDE]

But War is here to tell you that you are all under attack!

[CLICK]

And you don’t even know it!

[CLICK]

In case you were wondering, that’s bad. As Sun Tzu said…

[CLICK]

“If you know the enemy and know yourself you need not fear the results of a hundred battles.” Or as G. I. Joe once said…

[CLICK]

“Knowing is half the battle.” Or as, I, Jim Dudukovich, the biggest Justin Bieber fan in this room once said…

[CLICK]

“Justin Bieber? AHHHHHHHH!” That’s supposed to be a shriek like a girl, Jim. C’mon now.

So you must be wondering who is attacking you?

[CLICK – NEW SLIDE]

The answer should be obvious.

[CLICK]

Celebrities.

[CLICK – NEW SLIDE]

Celebrities are tricky.

[CLICK]

Legally speaking, celebrities are better than you with a whole set of rights that you don’t have. I don’t mean you, the famous people in this room, I mean you, Jim Dudukovich, who is reading this right now and regretting that he agreed to read every word Ryan wrote. Words like susceptible and onomatopoeia.

[CLICK]

We all want to work with celebrities but stay within the bounds of the FTC Endorsement Guidelines.

[CLICK]

That can be tricky when you have a tweet like this. A celebrity tweeting something about a major brand. A brand that has paid the celebrity. And a celebrity who has not disclosed her commercial affiliation with that brand.

But if you think just that tweet is risky, let me show you the rest of the screen.

[CLICK – NEW SLIDE]

Now that the room has calmed down from its mighty uproar, I can confirm this was a live grab from a CNBC video on the day the tweet came out. Complete with the wrong day and the word “TEETED” But why was CNBC covering this tweet?

[CLICK]

Because JC Penny’s stock was spiking and this was getting the blame. That’s not the kind of publicity brands are hoping for when they hire celebrities.

[CLICK – NEW SLIDE]

By now you’re thinking “But I have a contract that requires the celebrity to disclose our relationship so that’s enough!” Well, if you think that is enough then raise your hand and I, Jim Dudukovich, will come down and give you a $10 bill after the panel.

[CLICK]

You might want to save that money, though, because even if your contract requires the disclosure but the celebrity fails to do so, your brand could be liable.

[CLICK]

So you should monitor and respond as a best practice. If you see a tweet come out without the proper disclosure, then disclose the relationship yourself. Immediately.

[CLICK]

Or, even bester (yes, it’s a word!), maybe your brand’s site has a single page that proactively discloses all paid relationships? That would be as awesome as I am a Justin Bieber fan. And I am a HUGE Bieber fan.

[CLICK – NEW SLIDE]

Celebrities also need to be watched for when they spontaneously engage with your brand. Because they’re celebrities for a reason. For example, every day there are approximately 25,000 social media conversations about Dell.

[CLICK]

Then one day…

[CLICK]

Louis Tomlinson from the amazing, incredible band One Direction, a band that I, Jim Dudukovich, personally believe rivals The Beatles in sheer musical talent, sent the following tweet:

[CLICK]

This tweet wasn’t anything special, just a simple request for help. But look at these numbers.

[CLICK]

Retweets and favorites sent Dell metrics through the roof that day. Responding to that issue became a priority. So you need to watch and engage appropriately.

[CLICK – NEW SLIDE]

Speaking of engaging appropriately, your legal team has to engage in a social media appropriate manner.

[CLICK]

They must know nothing is confidential when it comes to third parties.

[CLICK]

They must know public opinion will decide your fate.

[CLICK]

And you only get one shot.

[CLICK]

So the old way of trying to sue everyone that says something bad about you doesn’t work anymore. If it ever did.

[CLICK – NEW SLIDE]

Instead, it turns out Edwin Starr was right. Here, let me sing this to you.

[CLICK]

“They say we must fight to keep our freedom, But Lord knows there’s got to be a better way”

[CLICK]

And there is

[CLICK]

As in the case of a Jack Daniel’s cease and desist letter that was so nice…

[CLICK]

That Mashable called it the most polite cease and desist letter ever. It was kind, it offered to help, and while it pointed out their legal rights it didn’t make an ass of themselves doing it. Yeah, I said ass. I’ll say ass all day long.

In fact, I have a few more choice words to say to Shifty who’s probably in the room.

“Hey, Shifty, you piece of {FILE READ ERROR}

1 Comment

Filed under Celebrities, FTC Endorsement Guidelines, Social Media Lawyers, Social Media Risks, Twitter

Why The Last Six Months In Social Media Are Like St. Elmo’s Fire

These are both St. Elmo’s Fire. One is a flaming ball of gas that misleads people and the other is a weather phenomenon.

Social media finally graduated, moved into its first apartment, and wants to eat something besides ramen noodles for the rest of it’s life.  Yes, we are in the new age of social media maturity.  But if you look back at the last six months of social media and compare it to previous six month periods I think the one thing you can say is “Man, that was boring!”  We haven’t had a lot of huge stories come out of social media.  Sure, you’ve got your mix of people doing stupid stuff on social media.  And stories of a few brands doing stupid stuff on social media.  But that’s not new.  For what’s new, I think there are two big topics coming out of the last six months of social media.

First, the last six months in social media have been an amazing time because it’s been the start of social media maturity.  Amazing in one sense because that it happened so quickly, but also boring because, let’s face it, maturity is boring.  It’s almost as if when Facebook went public all of social media graduated.  And now social media is living in that crucial time after college when we’re younger than we care to admit but truly being forced into the world with all the real, grown-up problems we’ve only heard about before.

In fact, if you were to ask me, “Ryan, what 80’s movie best encapsulates this moment in social media history?” I would unequivocally tell you it was St. Elmo’s Fire.  I don’t say that because it has arguably the best theme song of any 80s movie, which since people who know me know my affinity for Flashdance‘s “What a Feeling” says a lot.  I also don’t say this because the movie, along with Lost Boys, was the height of Joel Schumacher’s career before he went downhill and eventually destroyed the Batman franchise for a good 8 years.  I say this because, like the characters in St Elmo’s Fire, social media is now truly entering the real world.

That can be hard to grasp with social media practitioners because we’ve been at the leading edge.  We have been living in a social media world for years.  But we are the exceptions.  If you were speaking to a group of attorneys a year ago they would think social media was still a trend, a fad, perhaps something that wouldn’t last.  Half the room or more would say, or think, they weren’t on social media.  That doesn’t happen anymore.  The other week I spoke on social media legal issues at a conference for the International Association of Contract and Commercial Managers.  First, you haven’t partied until you’ve partied with contract and commercial managers.  Second, more importantly, in that group which ranged in age and location and job functions, every single one already thought they were on social media.

That’s just my latest example but I’ve seen it come true over this last year and really the last six months.  That person who isn’t on Facebook is no longer quaint; he’s now a little bit weird.  Truth be told, it’s more than a little bit annoying when you have to tell them something everyone else has commented on in social media.  Or we’ve all had that awkward moment when one of them emails us a funny article or picture that we all saw a week earlier on social media.  I thought it was a great moment when, during the presidential debates you had twitter feeds on TV and even one tweet asking where was the horses and bayonettes tumblr and minutes later it was up.

Social media has graduated from the fresh-faced college graduate to the young adult living in a small apartment, grinding through that first job, struggling to pay bills and student loans and live up to this potential they’ve been told about their entire lives.  So that’s the first big topic I see from these last six months: social media is the new normal.

The second big topic I see coming out of social media in the last six months builds on this first item–the growing expectation of consumers on social media.  Now that social media is normal, is expected, it is no longer enough to simply be on social media.  Brands have to do more to compete.  More contests, more campaigns, more ways to interact.  It used to be that having a page was enough and customers would Like your page and you’d get a benefit.  Now, if that’s all you do, you’re likely to get the Like and then no interaction at all.  Customers are expecting more and brands are trying to deliver more.

But the good news is that customers will reward a brand if they do more.  One of the best examples was a recent survey that showed 89% of consumers would feel more loyal to a brand if they were invited to a group.  That number may be common knowledge to some of you but both the result and the awareness by a customer surprised me.  They were saying if you invite me to be a part of your community I will be loyal.  That is fascinating.  Some other interesting bits from that survey showed that of those 89% of customers, 41% want companies to seek feedback and 37% are looking for new ways to interact with brands via social media.

So this second big topic from the last six months is that customers on social media want to feel special.  Just participating in social media isn’t special enough anymore, there has to be something more.  That’s a huge opportunity and an area filled with risk and hurdles that we will have the pleasure to help our clients work through.

In closing, let me bring it back to St Elmo’s Fire.  Because an hour from now you aren’t going to remember anything I just wrote but you will have “Man In Motion” stuck in your head.  Just so everyone understands, I don’t think St Elmo’s Fire is a good movie, it’s just a metaphor.  And the movie had it’s own metaphor in the title which I think is appropriate here.  If I was one to make horrible puns then I would call that a meta-metaphor.  Lucky for you all, I don’t do puns.

The real St Elmo’s Fire is an electrical phenomenon that takes place around storms that creates luminous plasma.  You can look it up yourself on Wikipedia but apparently these glowing balls of light are created by either coronal interactions in the atmosphere or unicorn farts.  Either way, the story told in the movie is that sailors used to see these glowing balls of light and think they were fires, so they’d sail in that direction thinking they were headed towards land and either safety or vast riches.  As social media matures, as it is the new normal, the Social Media St Elmo’s Fire is something we all have to watch out for.  Social media practitioners have to help each other chase goals that are real, not illusions.  Because after months of travelling we don’t want to end up in the middle of nowhere or, even worse, having Joel Schumacher making a movie about us.

That’s what I think is new in social media.  So now let’s hear what you think is new these past six months in social media or what 80s film you think best describes social media right now.

Leave a comment

Filed under Social Content, Social Marketing, Social Measurement, Social Media Lawyers, Social Media Risks, Social Platforms