LEGAL Social Media and the Law: Simple How-To Navigation Joshua Glazov is the chair of Much Shelist’s timeshare and vacation ownership law group. His e-mail is JGlazov@ muchshelist.com. BY JOSHUA GLAZOV, CHARLES GARDNER, AND NEIL POSNER This article is based on a presentation Messrs. Glazov and Gardner presented in Chicago in November 2011. E Charles Gardner is the chair of Much Shelist’s social media practice. He formerly served as executive, in-house, and outside counsel for a number of the country’s top media companies, including Harpo Studios, Inc. (producer of The Oprah Winfrey Show), and Warner Bros./Telepictures. Neil Posner is chair of Much Shelist’s Policyholders’ Insurance Coverage group. He focuses his practice in the area of insurance coverage, with specific emphasis on insurance policy terms, loss prevention and recovery, dispute resolution, risk management, and cost containment. 44 — Developments arda.org veryday social media opens new passages to marketing and sales opportunities. But those passages come with new shoals where you and your vessel can run aground. This is about helping navigate those passages without hitting the rocks. First, when we say “social media,” we’re talking about forms of electronic communication where users create on-line content to share information, ideas, entertainment, personal messages, and other content. And they do that via multiple media—text, pictures, audio, video. Prime examples include TUG, Facebook, YouTube, Twitter, Yelp, Epinions, and blogs. By You and About You Are you overwhelmed by so much media about social media—articles, presentations, and consultants? Chaotic? Try this simple device. Divide the way you look at social media into two baskets: 1. The “By You” Basket—This is social media content by you. It includes what you and your company puts out into social media, your words, your images, and your audio/video. 2. The “About You” Basket—This is social media content about you. It includes words, images, audio, video, etc., about you from your owners, renters, vendors, employees, competitors, fans, and critics. Even though some things qualify for both baskets, this can be a great exercise to get a handle on your social media issues, organize them, and then set a plan. Social Media Policy & Plan Do you have a social media policy? Do you have a separate plan as well? In the by you basket, your policy and plan should ensure you know which social media outlets you’re using, what content goes into each, who puts it there, and who it’s focused on reaching. Your policy and plan should also set-up the process that ensures consistency, efficiency, and quality control— who controls and has access to accounts, and what measures are in place to segregate personal accounts from company accounts. Your policy and plan also affect content about you, particularly content from your employees and management. Does your policy identify what your personnel can and cannot say about your company? Does it identify disciplinary consequences if they violate these requirements? Unfair Labor Practices Is your policy tailored to navigate around the treacherous rocks placed just beneath the surface by government regulators like the National Labor Relations Board (NLRB)? The NLRB recognizes and protects social media as a forum not just for union organizing but also for broader “concerted activities,” protected under the National Labor Relations Act. Essentially, that protects two or more employees communicating about the terms or conditions of employment. And a social media policy that goes too far courts trouble with the NLRB. Recently, an auto dealer encountered trouble for disciplining employees for using social media to criticize how the dealership ran sales operations and promotions. LEGAL Critical Content About You: Response Options The Traditional Approach and the “Streisand Effect” You can have your lawyers send snarling and supercilious letters that demand offensive content be taken down, defamation be retracted, trademarks and copyrighted material be removed, and threatening damages and injunctions be the price of defiance. Then, if the offenders still don’t yield, you sue. But, pause before you do that and consider Barbara Streisand. When documenting the erosion of California’s coastline, photographer Kenneth Adelman posted (among thousands of other pictures) a shot that included Ms. Streisand’s seaside mansion. Someone described Adelman’s Web site as “a noble project that most people would have totally ignored.” And his photo that included Ms. Streisand’s home remained obscure until her lawyers wrote to Adelman demanding that he remove the photo from the site. When he didn’t, they sued. In their complaint, Ms. Streisand and her lawyers had to identify which photo—among the thousands— included Ms. Streisand’s home. The shot rapidly emerged from obscurity to more than 300,000 hits per month. Not only did Ms. Streisand lose her lawsuit, she paid more than $150,000 of Adelman’s legal expenses. And as added bonus, her name is also now a meme for unsuccessfully attempted Internet censorship. Embrace the Situation Others have been more adroit. A recent ARDA Think Tank presentation featured EepyBird.com’s vidoes of dropping Mento candies into two liter Diet Coke bottles, a catalyst that set off a synchronized ballet of soda shooting into the air. And instead of Coca-Cola unleashing trademark lawyers to shut down EepyBird and propel them into Pepsi’s arms, they unleashed sponsorship with ever larger displays of Coke products and EepyBid technicians adorned in Coke logo-emblazoned lab coats. When someone accidentally tweeted that “Ryan found two more four-bottle packs of Dogfish Head’s Midas Touch Beer...when we drink we do it right #gettngslizzerd,” on the Red Cross’s Twitter account (instead of Continued on page 98 X Taking Control of Your On-line Brand image—enhancing consumers’ perceptions of it and developing effective social media strategies accordingly. In response to all these dynamic conversations, RCI has launched the RCI® Timeshare On-line Listening Center (TOL C). This new turn-key solution is designed to help developers overcome the obstacles to developing their own monitoring capabilities and offers them a service that lets them understand, manage, and begin to influence what’s being said about their brands on the Web. The use of the Internet and mobile technologies has exploded, and it’s a challenge to keep track of all the online conversations about and mentions of a brand. Customers are talking loudly about their experiences—good and bad alike. Family, friends, and online acquaintances are making recommendations or sending warnings to their networks of on-line contacts. And other users are forwarding those messages, amplifying their impact. Monitoring and protecting a brand’s reputation in this space is now a top priority to sustain an 46 — Developments arda.org Using its knowledge of on-line listening platforms, the timeshare industry, and social media, RCI can provide a monitoring service that delivers ongoing reporting and analysis and recommending protocols for issue escalations. “On-line monitoring is now critical and should be incorporated into the marketing strategy for every brand manager and marketing professional in the timeshare industry,” says Phil Brojan, senior vice president of global marketing, RCI. “You have to be able to listen and respond effectively, to both preserve and enhance your brand.” On-line commentary is a steady stream, as more people are plugged into social media than ever before and with increasing frequency. The fastest growing segment of users of social iÌÜÀ}Ê ÃÌiÃÊ ÃÊ ÀiÌÀiiÃÊ >}iÊ ÈxÊ and older, and more than half of baby boomers use social networking sites. With that, current timeshare owners are talking, and prospective owners are listening and asking questions. From Facebook and Twitter to Yelp and TripAdvisor, there are forums on which consumers—satisfied and dissatisfied—can share their views. Do you know what’s being said about your brand online? Would you know where to look? Would you know how to respond to an owner’s comments? In this new service, RCI offers a viable option to help save costs where niche social media agencies may be dearly expensive. The TOL C mines for that golden commentary, while also providing developers the opportunity to counter and reposition criticism— thus enabling them to own on-line conversations about their brand. The center features a team of industry professionals that specialize in social media, with a central command center at the RCI global headquarters in Parsippany, New Jersey. The details on the service this center offers are as follows: ✓ Fully tailored monitoring— White-labeled reporting can be disseminated throughout an organization. This information will help develop new products and offerings, refine the sales process, and evaluate the effectiveness of a resort’s staffing. ✓ Ongoing recommendations—Recommendations for issue escalation and outreach will empower developers to address both positive and negative comments found online quickly and easily. ✓ Trusted advisor—RCI’s experience in both timeshare and on-line positions it as an advisor qualified to assist developers in taking ownership of their brands. SOCIAL MEDIA AND THE LAW ÌÕi`ÊvÀÊ*>}iÊ{È a personal account), the Red Cross didn’t fire anyone or clamp down. Instead, they tweeted: “We’ve deleted the rogue tweet but rest assured the Red Cross is sober and we’ve confiscated the keys.” End result? More Red Cross Twitter followers, a Dogfish Beer sponsorship, and increased donations. Social Media Service Contracts Have you hired an outside social media firm to manage your content? What does your contract let you do if they accidentally tweet something like this message that a consultant inadvertently sent on Chrysler’s account: “I find it ironic that Detroit is known as the #motorcity and yet no one here knows how to f**king drive”? How and when can you fire them? Will they defend and indemnify you against claims that come about because of what they do on your behalf? Do they have FNTC AMERICA 98 — Developments arda.org professional errors and omissions liability insurance to pay for that? Social Media Insurance Social media poses new by you and about you risks. Few policies cover these risks. Advertising injury coverage under most commercial general liability policies often don’t cover by you content in social media outlets. And many crisis management and reputational risk policies are obsolete when it comes to confronting an epidemic of scrutiny and condemnation accelerated via social media. If your company is using social media, it’s worth the time it takes to audit your policies and even consider manuscript policies and endorsements. Social media poses new by you and about you risks. Few policies cover these risks.