Overview

Social media is changing the ways companies do business. While social media can be a powerful tool for businesses seeking to reach current customers and attract new ones, it can also raise difficult questions. Social media can create unique concerns for businesses about protecting intellectual property, ensuring the privacy of users and employees, and complying with constantly-shifting government regulations and standards.

These and other challenges can increase a company’s exposure to litigation, and—lawsuits or not—the exponential rate at which information on social media spreads underscores the need for effective crisis communications. In short, because of social media’s pervasive influence, companies that rely on social media must be prepared to anticipate and respond to its legal implications.

Mayer Brown lawyers have extensive experience helping companies balance the risks and benefits of a variety of social media strategies, minimize potential liabilities and successfully defend against litigation that can arise from its use. This experience includes:

  • Litigation/crisis management involving privacy class actions, copyright infringement, the Fair Credit Reporting Act or product recalls
  • Development of their social media policies for work and non-work-related activities
  • Social media strategies relating to pending or anticipated litigation
  • Intellectual property counseling and litigation
  • Consumer privacy and regulatory compliance for social media marketing campaigns

Experiencia

Mayer Brown lawyers have extensive experience helping companies balance the risks and benefits of various social media strategies, minimize potential liabilities and successfully defend against claims that can result from its use. Examples of our work in these areas include the following projects:

Litigation/Crisis Management

  • Advising an Internet search engine in defense of a $1 billion copyright infringement case arising out of user-generated postings on a popular online service. The case involved novel issues relating to the Digital Millennium Copyright Act and has been identified as "one of the top 5 most important IP cases of the year."
  • Defending a number of lawsuits alleging Fair Credit Reporting Act violations based on cookie tracking and other compilations of personal information.
  • Advising a corporation on its use of social media in connection with a product recall.

Employment
We advise employers on the development of their social media policies. Topics of particular concern include employee use of social media for work and non-work-related activities and protecting the employer’s ownership of trade secret and other proprietary information that is disclosed to employees for work purposes. We also advise our clients with regard to employee discipline for non-work-related activities, including the use of social media and the fallout from such use, Bring Your Own Device (BYOD) and employee privacy issues, including monitoring employee emails and social media use. Our recent projects in this area include:

  • Advising companies on the permissible bounds of monitoring their employees’ social media activity.
  • Counseling clients on considerations that arise when the employment relationship ends, including potential avenues for addressing former employees’ negative comments about the company on social media, the application of restrictive covenants to the use of social media accounts post-employment, and LinkedIn recommendations and endorsements related to former employees.
  • Successfully predicting the National Labor Relations Board’s stance on social media discipline and advising non-union employers accordingly more than a year in advance of NLRB statements on the subject.
  • Advising employers on how to revise their social media policies with a view to the NLRB’s perspective while still meeting business goals.
  • Advising employers on competing obligations between laws forbidding disclosure (e.g., social media password protection laws) and laws requiring monitoring of business communications (e.g., securities laws).
  • Advising companies how they can succeed in protecting their investment in proprietary information that may be affected by social media networks (e.g., to retain the modern equivalent of customer lists—employees’ social-media followers).

Intellectual Property

  • Successful litigation of cases involving ownership and control of websites, LinkedIn profiles and other social media presence in a corporate break-up.
  • Advising clients on proper trademark usage and other intellectual property concerns in social media.
  • Advising clients on compliance with the Digital Millennium Copyright Act and addressing related pending litigation.
  • Advising a company on its master service agreement with application developers.

Consumer & Privacy

  • Advising companies on social media use in marketing endeavors, including how to comply with Federal Trade Commission regulations and avoid claims of false-advertising and violations of user privacy.
  • Providing advice to a national retailer regarding the terms of use agreements associated with developing new e-commerce.
  • Representing companies in FTC investigations related to social media.
  • Advising a national bank on revising policies and online acknowledgments for the company’s intranet in compliance with FTC and NLRB regulations.
  • Revising company agreements with bloggers.
  • Representing and defending several companies in Internet-privacy cases, including those alleging improper tracking using cookies.
  • Advising clients on the use of social media in advertising, including compliance with the FTC’s guidance on disclosures, privacy policies and user-generated content.
  • Drafting online terms of use, terms of service, and privacy policies, including drafting contract provisions that help mitigate risk.
  • Advising multinational organizations and their international licensees on outward facing social media policies.

Finance Transactions

  • Advising on a financing structure for an e-commerce application developer to support its contractors’ purchase of equipment to serve customers.
    Crisis Management.
  • Advising clients on social media use in connection with large third-party events, such as the Super Bowl and the Oscars ceremony.
  • Counseling clients on social media strategies relating to pending or anticipated litigation.
  • Helping companies develop communication response plans during social media crises.