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Social Networking and Government

Social Networking and Government

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Social Networking and Government

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Presentation Transcript

  1. Social Networking and Government Legal Issues

  2. Overview • Standard Contract Terms of Social Networking Sites • Government Content on a Third-Party Site • Competitive Procurement Issues • First Amendment Issues

  3. Standard Contract Terms • Pages of fine print • Dense legal jargon • No ability to negotiate Should we care what the terms and conditions say??

  4. Standard Contract Terms (cont.) • Courts call these Contracts of Adhesion • Contracts of Adhesion are potentially enforceable, BUT . . . • Courts are less inclined to enforce a particular term, if: • The term is unreasonable (party would not have agreed if it knew the term was part of the agreement) • There was little or no opportunity to negotiate the term • Imbalance in the sophistication of the parties • The term was obscured in the fine print.

  5. Terms to Think About • Royalty Free License: Facebook: “. . . You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content you post . . . This IP license ends when you delete your IP content or your account (except to the extent your content has been shared with others).” • Think before you post.

  6. Terms to Think About (cont.) • Limitation of Liability Provisions • Waive all known and unknown claims – enforceable? • No liability for lost profits or other “consequential damages” • Limit on damages: (E.g., Facebook - $100 or amount paid to Facebook in the last 12 months) • Does your local law allow you to agree to these provisions?

  7. Terms to Think About (cont.) • Indemnity: Facebook – “ If anyone brings a claims against us related to your actions or your content on Facebook, you will indemnify or hold us harmless from and against any and all damages . . . of any kind . . .” • Dispute resolution via arbitration or court? • Which arbitrator? Location of court (venue)? • Which law applies?

  8. Terms to Think About (cont.) • Changes to Terms and Conditions: • Facebook 9/08: “We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice. . . Your continued use of the . . . Site after any such changes constitutes your acceptance of the new Terms of Use” • Facebook 5/09: “We can change this Statement so long as we provide you notice through Facebook . . . and an opportunity to comment. . . . We can make changes for administrative or legal reasons upon notice but without opportunity to comment.”

  9. Gov’t Content on 3d-Party Sites • Government has less control over third-party sites than its own site. • Some users of the government’s page may not appreciate that your city does not control everything on the site.

  10. Gov’t content on 3d Party Sites(cont.) • Example: Advertising next to a city’s page, such as a political campaign or cause • Will some people infer city endorsement? Any different from ads in a newspaper or magazine? • Will sites negotiate limits on advertising next to City pages? • Example: Privacy Policy of the social networking site may differ from your city’s preferred policy • Consider a disclaimer making clear that the 3d party site’s privacy policy applies

  11. Procurement Issues • Is use of free service considered a gift? Need authority to accept? • Does local law require some sort of competitive process to choose which site(s) to use? • Not spending government money • Conferring a benefit on site(s) you choose?

  12. Public Forum Issues • Issue: Should governments allow users to post comments on social websites? • Before moving ahead, consider the First Amendment: Government “shall make no law . . . abridging the freedom of speech” • Questions arise if the government wants to restrict comments.

  13. Public Forum Issues (cont.) • Public Forum line of cases • If government creates a public forum, any restrictions on speech must serve a “compelling state interest” • If government creates only a limited public forum, restrictions on speech must be reasonable, provided that they are viewpoint neutral • How to create a limited public forum • One good way: Have a policy showing intent to limit access (e.g., participate only with permission, limited subject matter), and stick to the policy

  14. Public Forum Issues (cont.) • 3rd-Party sites are different from sites a government controls • Sites typically moderate the comments based on site policies (e.g., Facebook – “you will not bully, intimidate or harass any user”) • Question: Do sites allow page “owners” also to moderate comments? • If the government does not restrict comments (relies on site to moderate), then probably no First Amendment issue