What is clear is that the general rule of Internet free services applies. If you’re not paying for the service, you’re the product. It’s a Faustian bargain you enter into willingly with every online service that you use (from Facebook to Gmail).
Rule of Internet Free Services: You trade information about yourself and others in exchange for the service provider delivering what you want.
And if you don’t want to trade that information to be used for targeted advertising and other purposes, don’t use the “free” service. It’s really that simple.
From Reddit to South Park, Internet trolls and troll hunting are a subject of hot debate.
If you run a social media site, forum, membership website, or allow comments on your blog, chances are you’ve encountered trolls in some form.
Why Internet trolls exist
Although sometimes it’s easy to identify the motives behind a particular troll for causing trouble (e.g. a troll paid to wreak havoc online in a political campaign), more often it’s a pointless exercise because the troll is posting outrageous or inflammatory content for personal amusement, out of sheer boredom, or because of mental illness.
Interacting with Trolls
The phrase “do not feed the troll” exists for a reason. Trolls that are ignored often disappear. Visitors that interact with trolls are in essence feeding them so that they remain for more nourishment.
If you or one of your employees interacts with a troll, it’s like you’ve prepared a troll feast because such communication is more highly valued by the troll than simply dealing with other site visitors.
Under no circumstances should you try to troll a troll. It’s a losing proposition because even if you win a minor skirmish, you’ve encouraged a troll war on your turf. And some of the trolls may also be hackers you’ve given an axe to grind against you and your site.
Does The First Amendment Protect Trolling?
A common mistake made by website owners and trolls is to believe that trolling is constitutionally protected free speech.
However, those constitutional protections prevent the government from abridging free speech, not site owners or admins. If you own the ballpark, generally it’s your rules that govern what’s posted there (except for content that breaks the law, such as physical threats of violence, posting child porn, etc.).
Set Clear Rules
For content provided by others on your site, set clear rules as to what’s allowed and, equally important, what you’re banning. For example, if you have a membership website, your Internet lawyer can draft rules that are part of the membership agreement accepted by members. Depending upon the severity of the infraction, violations can lead to user content moderation, member suspension, or even termination.
On the other hand, it may be to your benefit to permit trolls free rein (within the confines of the law) as a means to spur debate, increase user engagement/stick rates, and boost site traffic in the process.
According to Internet Lawyer Mike Young, your visitors should know what’s permitted and what’s not so that they can make an informed decision whether to interact at your site. For instance, if a new visitor is clearly informed that free range trolling is allowed (anything goes), that visitor will rarely have a legitimate reason to complain to you, your admins, and moderators when trolls attack.
Consistently Enforce Content Rules
Perhaps the worst thing you can do when it comes to Internet trolls is to set rules but either violate or enforce them arbitrarily. Inconsistency generates user distrust while encouraging trolls to respond to hypocrisy by increasing their attacks.
If you don’t like the outcome of your current rules as they’re enforced, change the rules. However, be sure to give advance notice of the change, explain why the change is being made, and do not enforce the new rules retroactively to the past trolling that caused the change in the first place.
Voyeurism is a problem for business owners today. For example, former Playboy Playmate Dani Mathers took photo(s) of a naked woman showering at an LA Fitness gym and posted to Snapchat to make fun of the woman’s physique.
The social media backlash against Mathers has resulted in her losing her job, a lifetime ban from the gym, and she may face criminal charges for her conduct and prison time if convicted.
Prison time for digital voyeurism is becoming more common. Earlier this year, Georgetown Orthodox Rabbi Barry Freundel was recently sentenced to more than six years in prison after admitting to video recording 52 women taking nude ritual baths at the synagogue.
But what about your business’ potential liability for voyeurism?
When voyeur videos or photos are taken at a business, there’s always a risk that the victim will sue both the person who recorded the video or took the pictures as well as the business where it occurred. For example, Fox Sports reporter Erin Andrews sued both the stalker who recorded peephole nude videos of her and the hotel owner and operator.
Initially on the hook for $27 million in the subsequent civil suit, the hotel settled the case for $5 million.
What can you do to protect your business from voyeur videos and pics?
Although there’s no complete shield to prevent a lawsuit, your liability exposure can be significantly reduced by taking the following steps.
If you have escalators and other locations where it is possible for upskirt pics or video to be taken without consent, you may also wish to post signs in these locations too.
2. In areas of your business where voyeurism could occur, have your cleaning staff routinely check for hidden cameras and video recording devices. You may wish to invest in hidden camera detectors to make it easier to discover spy cameras. Any suspicious devices should be reported to you immediately so that your business attorney and law enforcement can handle the matter.
3. Whether it’s a gym membership contract, a check-in agreement at a hotel, or some other written form of agreement you have with a customer, consider having the agreement modified by an experienced contracts lawyer to ban filming and photography in areas where voyeurism could occur on your premises. Your attorney may also want to include related indemnification and defense provisions.
A non-disparagement clause is an optional part of a contract that typically requires each party to the agreement will not say bad things about the others to third parties or the public in general. It’s designed to protect the reputations of all involved in the deal as well as prevent contractual disputes from going atomic through smear tactics.
Why have non-disparagement provisions become more important?
Traditionally, attorneys would focus on including nondisparagement clauses in settlement agreements that ended existing disputes before or during litigation. This is part of cleaning up a mess that’s already been made and trying to limit the damage caused in the process because the parties involved don’t like each other.
Today, because it’s so easy to ruin a company’s reputation through negative posts on consumer review websites and in social media outlets like Facebook, business owners are preemptively trying to gag their customers by having routine contracts provide for no disparagement.
Dallas Internet Lawyer Mike Young notes a recent Texas case where a couple was sued after posting a one-star review of a pet-sitting company on Yelp for violating a non disparagement clause. “The business was demanding up to $1 million to cover alleged damages from the negative review,” he said.
Are “no disparagement” clauses enforceable?
There are conflicting opinions by courts in various jurisdictions on whether or not you can enforce such a clause against your customers.
As a general rule of thumb, a non-disparagement clause that’s between your company and another business (a B2B transaction) is more likely to be enforced by a court than such a clause between your business and individual(s) in a business-to-consumer (B2C) transaction.
When striking down “no disparagement” provisions in consumer agreements, employment agreements, and settlement agreements, judges tend to rely upon the First Amendment rights of the individuals or vagueness in the boilerplate to reach such a decision.
Should you include a non disparagement clause in your agreements even if it might be unenforceable?
According to Dallas Internet Lawyer Mike Young, the primary purpose of the clause is to discourage the parties from discrediting each other in the first place rather than trying to obtain damages after disparagement has occurred. “If nothing else, the clause reminds everyone involved in a deal to be nice to each other.”
Do you know the 3 types of social media policies companies should have?
There’s a Utah company that may have killed its business by creating a ridiculous social media policy.
The company gave all of its customers a contract addendum that required the customers to set up Facebook accounts and “like” the business’ FB page. In addition, the new policy authorized the company to use the customers’ photos in social media for marketing.
Misusing Social Media Policies as a Big Stick
It gets worse…
The company told customers that if they didn’t cooperate, the business would consider them to be in breach of contract.
Is this legal? Of course not.
Before any lawsuits have been filed, the company is already paying a heavy price.
They’ve even been forced to shut down their Facebook page in damage control after its rating dropped to one star and the page was filled with angry comments.
Should Your Business Have a Social Media Policy?
That’s actually a trick question. You should have separate policies that cover your customers, your employees, and your independent contractors.
Your Customer Social Media Policy
Instead of threatening your customers, set up a system that pleasantly asks your satisfied purchasers to share their positive experiences in social media as an indirect way to promote your company.
Do: Show customers how to use Facebook, other social media, and review sites to serve as your brand ambassador using their own words. Comply with the posting guidelines for each site.
Don’t: Game the system by having them post to social media from your office. It sets off red flags at Google, Bing, and review sites if there are a bunch of canned testimonials and “likes” posting from a single IP address.
Your Employee Social Media Policy
Although you don’t want your company’s image tarnished by a rogue employee’s social networking, there are limitations on what your policy can do to control their actions.
For business-oriented sites like LinkedIn, it’s relatively easy to provide guidelines in your policy for what an employee can and cannot say, particularly with regard to their titles, role(s), and responsibilities at your company. However, content on personal social media sites like Facebook is tougher to control.
Your company’s Internet lawyer should craft a policy that doesn’t impose unreasonable restrictions on your employee’s free speech and privacy yet limits the ability of the employee to hurt your image by tying you to offensive or obscene content.
Do: Provide guidelines that sets parameters minimally necessary to protect your company. For example, if your employee identifies as a coke-snorting neo-Nazi who goes to plushie swingers parties, you probably don’t want your company’s name associated with those activities.
Don’t: Act like Big Brother. For example, never demand login access to your employee’s social media accounts or require your employee to “friend” you so that you have access to spy on the employee’s actions.
Your Independent Contractor Social Media Policy
If you’re outsourcing work to freelancers, you may not want your customers or competitors knowing that you’re doing so. It could mean lost business from unhappy customers and the competition poaching your talent.
Do: Limit the scope of what a contractor can and cannot say in social media about the contractor’s role at your company, including the services performed.
Don’t: Treat a contractor like an employee with your social media policy because it could be used against you to re-classify the contractor as an employee for taxes, worker’s comp, unemployment comp, benefits, and other purposes.
Is It Too Late to Set Social Media Policies?
Not yet…but waiting creates a ticking negative publicity time bomb that could go off at any time.
Even if you already have contracts in place, you can create policies designed to protect you and have them properly added as amendments. Not by using threats but with incentives (carrots) that make your new policies a win-win for everyone involved.
It’s also relatively easy for your Internet lawyer to set up your future agreements with customers, employees, and independent contractors so that the contracts include your social media policies too.
MATERIAL CONNECTIONS DISCLOSURE
Unless otherwise expressly stated, you should assume that all references to products and services at MikeYoungLaw.com are made because material connections exist between the Law Office of Michael E. Young PLLC and the providers of the mentioned products and services. This may include: (1) an attorney-client relationship; (2) and/or monetary or other compensation.