Social Media Attorney - A New Niche To Address A Growing Concern For Business

Posted on November 28, 2010 by N. Kane Bennett

I have written several posts on risk management and litigation arising out of social networking or media websites such as Facebook, Twitter and LinkedIn. Dan Schwartz's Employment Law Blog includes coverage of a variety of concerns with use of social media and the need for internal policies and procedures.  While Dan's blog covers employment law and this blog covers business litigation, social media ends up a frequent topic on both blogs.  In fact, you can read about social media on legal blogs across the country covering litigation, intellectual property, privacy, defamation, and the first amendment.  

Some say social media is a fad so why the extensive coverage on legal blogs?  The facts is that as the use of social media continues to grow and involve massive numbers of users, so does the risk of litigation and potential for numerous other legal issues.   To see some staggering statistics on social media,  check out the link to this video I came across on Tyson Snow's blog Social Media Esq. The video is by Erik Qualman, the author of socialnomics.  Here is a link to the video on YouTube (social media revolution 2 refresh).

If you want a real world example of social media's growing impact on the legal industry, consider Citigroup (Citi).  Citi posted on its website a job listing for Associate General Counsel.   The Citi job is not for auditing, compliance, or litigation.  Instead, in what may be a new trend, the Citi job is for Associate General Counsel-Social Media Attorney.   Citi is not alone.  Clorox also sought out an attorney to oversee its social media programs. I expect more companies will follow with new stand alone social media attorney positions.

The responsibilities posted for the Citi position give business owners a snap shot of the potential areas for concern. As posted on its website:  

The Citi Social Media Attorney will be responsible for the legal oversight of social media in three spheres:
 
A.        Citi-sponsored media such as company websites, Twitter accounts, and   YouTube;
B.        Social media interaction between Citi and the public/third parties; and,
C.        Employee participation in social media, as site user and/or site administrator.

The specific duties of the Citi Social Media Attorney provide a glimpse of the need for management of a vast array of legal areas.  The duties for the Citi job include:

•           Continued development and management of documentation for Citi-sponsored web initiatives (internal and external).
•           Lead establishment of legal risk framework for the Company's social media efforts.
•           Work with specific business counsel to ascertain approval of content, as appropriate.
•           Consolidate, identify and address legal issues presented in content submissions for the social media sponsor.
•           Help establish consistent processes for vetting and replying to comments in interactive environments (websites, Twitter, etc) and promote consistency of policy implementation and risk-related practices.
•           Help protect Citi intellectual property in the world of social media.
•           Help oversee negotiation and drafting of contracts with third parties such as social media providers and content sources.
•           Serve as a resource for Citi's business areas and business counsel as to inquiries regarding legal risks and parameters for social media.
 
Citi requested that the attorney for this position have experience in:
Advertising, Intellectual property, Information privacy/data security including specifically relevant sections of Lanham Act; Copyright Act as amended by Digital Millennium Copyright Act;  FTC Act and Guides (including recent Endorsements/Testimonials Guidelines); rights of publicity/privacy; promotions law; defamation law; Communications Decency Act.
 

In my view, Citi has smartly recognized that managing social media does not fall into a traditional field of law such as advertising or intellectual property alone, but rather overlaps several areas that can rapidly change.  As such, proper management of social media issues for a large company likely requires a dedicated position.  This could be a sign of a new practice area or niche: the Social Media Attorney. Either way, it certainly confirms that business and employment attorneys need to understand these areas of law to address the risks clients face as the use of social media continues to grow.


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Will Data Protection Laws Ever Catch Up To New Technology?

Posted on May 3, 2010 by N. Kane Bennett

That was the question posed in an email newsletter I received today from the International Association of Privacy Professionals.   I am a member of this group out of personal interest and to to stay on top of issues related to privacy laws and technology.   One of the benefits of belonging to this group is that I get email newsletters with summaries of new laws, regulations, and lawsuits dealing with privacy issues from all over the world. 

Today's email posed the question in the title of this post and featured an article from the New York Times by Natasha Singer called "Shoppers Have No Secrets."   The article details the technology of "behavioral tracking" by retail and advertising businesses and how the Federal Trade Commission (FTC) is playing catch up when it comes to regulating this technology.

Online behavioral tracking has been a hot button issue for both businesses and privacy rights groups for a few years.  Natasha's article lists several types of new tracking to include:

  • Cameras that can follow you from the minute you enter a store to the moment you hit the checkout counter, recording every T-shirt you touch, every mannequin you ogle, every time you blow your nose or stop to tie your shoelaces.
  • Web coupons embedded with bar codes that can identify, and alert retailers to, the search terms you used to find them.
  • Mobile marketers that can find you near a store clothing rack, and send ads to your cellphone based on your past preferences and behavior.

The article is a very good summary of the issue and has links to advocacy groups on both sides of the debate.  The article also highlights the differences between European and US based privacy laws. In general, the EU is far more advanced and stringent when it comes to personal data protection. 

In the US, the FTC publishes guidelines and takes enforcement action under its authority to regulate unfair trade.  There are also the states' Attorney Generals and class action and individual lawsuits.  Nevertheless, to answer the question I posed in this post, it is clearly a "NO" in the US.   Data protection laws will not catch up to new technology. At least, not anytime soon.

So, should Connecticut businesses ignore consumer privacy issues?    Not if the business wants to stay ahead of the game and out of litigation over privacy violations.   The FTC and state Attorneys General still have broad enforcement powers to regulate unfair trade.  Also, individual consumers continue to bring lawsuits over these issues.  

For Connecticut businesses, it is a good idea or best practices to implement  a policy related to protection of consumer data, preferences, and personal identifiers.  I have posted some tips about these issues before.  If you are looking for "do it yourself" resources, another good place to start is the FTC guidelines on behavioral tracking or its Guide for Business in protecting personal information. 

Of course, by the time you implement a privacy plan for today's technology, it will be time to start updating it for what tomorrow brings.  Good thing I get an email to remind me.   

 

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