Q:        Facebook changed its terms of service in January 2015. How does this affect me?

A:        Most terms impacting the average user have not changed. Facebook has tried to simplify the language and has introduced a guide (“Privacy Basics”) to help users with privacy settings. The new terms explain more about how Facebook uses your information (such as your location) with its family of companies and advertisers. But be cautioned: your control over information you provide is limited.

Q:       I took a funny photo and posted it to Facebook. Now it’s being used for a local company’s billboard ad. Is that legal?
A:        Probably not. According to the law, the local company can’t use your photo for an ad without your permission. The 1976 Copyright Act gives you exclusive rights to original works including the rights to reproduce them, display them publicly and perform them in public, whether or not you register your work with the U.S. Copyright Office.

However, photos, stories and even secrets are now being broadcast to the world through popular social media sites like Facebook, Instagram and Twitter. Most site users don’t read the “terms of service” to learn what rights they have and what rights they may have given to website owners. If you read the terms of service, you may discover that you have granted these sites the right to license your photos to others without having to compensate you. Even if they have a right to do this according to the terms of service, they may not have done so. Most sites will offer to help you reach the person who appropriated your picture without your permission.

Q:       What permission did I give Facebook?

A:        You may have given permission for a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use … content you post,” which essentially allows Facebook to distribute your information for free to other users and to Facebook’s business partners, who develop games and advertisements you might see on the pages. These various users can reformat or modify your material for use with their systems. If you have an image or video that you may want to sell, it would be wise not to post it on a site where you have granted permission to use your material without paying you for it.

Q:       If my privacy settings only allow pictures and videos to be shared with close friends, will they be protected from use by strangers?

A:        Not necessarily. For example, if the privacy setting of one of your friends allows public sharing, then your information also may be shared with the public. One key point of Facebook’s terms is that its license with you ends only when you delete your account. If you see that something of yours was shared without your permission after you closed your account, that could be a violation of the Facebook agreement.

Q:       Can social media sites remove things I post or remove something if I object to the posting?

A:        Google, Facebook and Twitter reserve the right to remove content, as do many other service providers. Facebook has expanded the list of content it has the right to remove. This now includes content that is “hate speech, threatening, or pornographic, incites violence or contains nudity or graphic or gratuitous violence.” Following deadly attacks in France incited by satirical cartoons featuring the prophet Mohammad, the Turkish government asked Facebook to block content that depicted Mohammed disparagingly. The company agreed. Most social media sites also warn you to be careful about believing what you read and see on the sites. Twitter says, “We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any content or communications.”

Q:        Can a social site post be used against me in a legal proceeding?

A:        Possibly. Parties have successfully used information gathered from social media sites in court.  In a 2010 American Academy of Matrimonial Lawyers survey, 81 percent of divorce lawyers said they have increased their use of social networking to gather evidence. The U.S. Department of Justice provides guidelines to law enforcement on using social networks to investigate crimes and the American Bar Association endorses the right of trial lawyers to use the social media content of potential jurors to determine whether to select a person as a juror.

Q:        Can I sue a social media site if someone posts an untrue or hateful statement about me?

A:        Yes, but you probably won’t win your case. Most social media sites include “terms of use” language that says the sites are not responsible for what others post. Also, Section 230 of the Communications Decency Act, which governs most of the conduct of website hosts regarding posted comments, says, “…no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This means that, although you may be able to sue the person making the comments, you cannot hold responsible the owners of the site where the comments were posted.

This “Law You Can Use” column was provided by the Ohio State Bar Association.  It was prepared by Dan Trevas, a Columbus attorney and former news reporter for print and online news services.  The column offers general information about the law.  Seek an attorney’s advice before applying this information to a legal problem.

Q:       I was “served” my divorce papers through Facebook. Is that legal?

A:        In some jurisdictions outside Ohio (Utah, for example), social media—and in particular, Facebook—is now being used to provide official legal notice of a court action (called “service of process”) to individuals and sometimes even to businesses. Currently in Ohio, however, social media is not listed in the Ohio Rules of Civil Procedure as one of the ways service can be “perfected” or completed. This means that, even though no Ohio law or court appears to have specifically outlawed it, any attempt to serve process via social media may provoke a number of legal arguments about whether or not the case against you may be dismissed due to improper service of process.

            In Ohio, a court usually gives notice by delivering a set of court documents (sometimes called “process”) that usually includes a complaint (saying why you are being sued) and a summons (asking you to respond and/or come to court). Traditionally, “process” has been served by (a) personal service—physically handing the documentation to the person; (b) service to a party’s residence or place of business by mail; or, if the party cannot be located, (c) service by publication in a newspaper of general circulation. However, serving process through newspaper publication when a party cannot be located may no longer be as effective as sending out a notice through social media such as Facebook.

Q:        What happens if someone doesn’t receive court documents through “process”?

A:        If a person or business who started the lawsuit cannot obtain proper service of process, the other party will not receive the necessary “complaint” and the lawsuit cannot move forward. In some instances, the court may even dismiss the case. On the other hand, if a person or business is “served,” but fails to respond in a timely manner, the court may enter a “judgment” against that person or business.

Q:       Why is service by publication a “last resort” for tracking down evasive defendants?

A:        Realistically, a defendant is not likely to receive notice of the lawsuit through publication, because it is the rare individual who takes time to scour newspapers for fine-print-type legal notices. 

Q:       What do other states say about serving process through social media?

A:        While Ohio courts and the legislature have not yet weighed in on this issue, other states are starting to recognize social media as a viable alternative for service of process. In Utah, for example, when traditional methods of service are not viable options, the court can authorize service by means of social media even though the state’s rules of civil procedure do not specifically address social media. In Texas, pending legislation would allow courts to prescribe alternate service via social media if certain requirements are met. 

Q:       If I am involved in a case originating in a state that allows process to be served via social media (or if Ohio allows this in the future), what should I consider before using social media for this purpose?

A:        Serving process through social media might be an attractive alternative for you or your business to use when other methods such as personal service are not viable or are too costly.  However, you should know that a wary and cautious individual who wants to avoid service through social media could easily adjust his or her privacy settings and limit identifying information, and service through social media would not be a viable alternative.

            You should also be aware of the possibility that you may actually serve process on the wrong person, because it is not difficult to imitate or even steal a person’s online identity. Even so, the potential benefit of locating and serving process on the party so you or your business can move on with litigation may outweigh these pitfalls.

            Remember though, that in Ohio, you should still use the traditional methods of service unless and until the social media option becomes available.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Sara Ravas Cooper, an attorney in the Cleveland office of Walter Haverfield. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Used appropriately and in professional contexts, social media such as Facebook and Twitter can provide useful vehicles for communicating general healthcare information to the public, promoting new hospital/provider facilities and programs, building professional connections and providing an outlet to share experiences. Personal uses of social media, however, can have serious legal consequences, especially if patient-specific information is shared.

Q:        What are some improper uses of social media by healthcare providers?

A:        A physician, on his blog, referring to a patient by name and describing details of her care; a medical student filming a surgery with the patient’s face clearly visible and posting the video on YouTube; a nurse posting on her Facebook page that she had treated a “cop killer” the day following many news accounts naming the accused shooter and the hospital where he was treated; and a hospital admissions clerk, using her personal Smartphone, and after work hours, posting on her Facebook page the name of a celebrity that came to the hospital where she worked – and the reason for his admission.

Q:        Do such “posts” break any laws?

A:        The federal Health Insurance Portability and Accountability Act (“HIPAA”) privacy regulations forbid healthcare facilities (and their employees) from using or disclosing patient information without authorization, unless the use is for a legitimate purpose, such as patient treatment. Under HIPAA, patient information in all forms—electronic, “paper,” and verbal—is protected. Healthcare workers cannot talk about their patients outside of work, so, unless a patient gives written permission to disclose her patient information, a posting on Facebook, Twitter, YouTube or other form of social media likely is a HIPAA violation. It could also give rise to a host of claims under Ohio common law (e.g. invasion of privacy, intentional infliction of emotional distress, etc.)

Q:        What makes social media sharing a particular HIPAA risk?

A:        Because social media is informal, fast-paced, and conversational in nature, the risk of a HIPAA violation may not be appreciated. Healthcare workers who would never dream of handing out a paper document or even an e-mail with patient information may, without thinking, reveal too much in a Facebook post.

Q:        Might a hospital be responsible for a social media HIPAA violation, even if unaware of the post? 

A:        Potentially, yes.  HIPAA rules require hospitals and other “covered entities” to implement detailed policies and procedures and train their workforce members about HIPAA, including employees’ personal obligations to protect the privacy of patient information.  For HIPAA violations, fines can be imposed: ranging from $100 for a single, unintentional disclosure of one patient’s information up to $1.5 million for “willfully negligent” violations of HIPAA involving multiple disclosures or multiple patients. For an intentional HIPAA violation, the government can bring a criminal prosecution of up to 10 years in prison. Not every HIPAA violation leads to government penalties, but if the Government believes that employees’ improper social media posts reflect a facility’s general laxity about HIPAA compliance, the facility is more likely to be required to undertake extensive corrective action and pay hefty fines. 

Q:        Can an individual be penalized for a HIPAA violation for sharing patient information with Facebook “friends”?

A:        Yes. Individuals, as well as facilities, can be prosecuted criminally for HIPAA violations. Also, HIPAA specifically requires the employing healthcare facility to impose disciplinary measures—up to and including termination—for HIPAA violations.  An individual who is a physician, nurse, social worker or other licensed professional could also face discipline from the state’s licensing board for breach of patient confidentiality or unprofessional conduct. 

Q:        What steps can healthcare providers take to minimize HIPAA liability risks associated with social media?

A:        Providers should have comprehensive HIPAA privacy policies and procedures that are regularly reviewed.  Given the special risks associated with social media, providers should consider including a specific policy (and workforce education) on the subject. 

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Cincinnati attorney Sara Simrall Rorer, a partner in the Health and Life Sciences Practice Group of Taft Stettinius & Hollister, LLP. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Approximately 800 million people use Facebook, and Twitter has about 200 million account holders. Add in all of the bloggers and it becomes crystal clear that social media is more than just a fad. Social media is being used worldwide to connect old acquaintances, make business referrals, and market and advertise products and services. Chances are a vast majority of a company’s employees, customers, potential customers, and competitors access a social media site on a daily basis. Because social networks amass such huge audiences, social media is quickly becoming a preferred way for businesses to tout products and services.

Q:       Who regulates the use of social media as an advertising mechanism?

A:        The Federal Trade Commission regulates the use of endorsements and testimonials in advertising through its published Guides Concerning the Use of Endorsements and Testimonials in Advertising. These endorsement guides, which have been in effect for more than 20 years, address endorsements by consumers, experts, organizations, and celebrities. In fact, FTC revised its endorsement guides in 2009 to include blogs and social networking sites.

Q:       What qualifies as an endorsement?

A:        Under the guides, an endorsement is “any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness, or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.” 

Q:       What is the purpose of the FTC’s endorsement guides?

A:        The FTC’s aim is to ensure that endorsements are truthful and not misleading. Under the guides, endorsements must reflect the honest opinions, findings, beliefs, or experiences of the endorser, and not the marketer of the product. To help further this principle, “material connections” between marketers and endorsers that might affect the weight or credibility of the endorsement, such as connections that consumers would not normally expect, must be disclosed.

Q:       Don’t these updated regulations only apply when a sponsoring advertiser pays a blogger or spokesperson, like a famous celebrity, to tout its products online?

A:        No. If there is any relationship between the endorser and the marketer of the product that might affect how consumers evaluate the endorsement, the FTC regulations apply and the relationship should be disclosed. For example, the regulations would apply if a company’s receptionist wrote on her personal Facebook page a glowing review of a new product just launched by the company. Because the connection between the endorser (the receptionist) and the seller of the product (the company) might affect the weight or credibility of the endorsement, the receptionist’s employment must be clearly and conspicuously disclosed on her page. If the receptionist fails to disclose her relationship with the seller, her post would violate the FTC’s endorsement guides.

Q:       What can a business do to avoid violating the FTC’s endorsement guides?

A:        To avoid violating FTC regulations, businesses should educate their employees about what they can and cannot say and do online. An easy way to educate employees on how to properly use social media for business purposes is to adopt a clear, well-written social media policy.

Q:       Where can I go to get more information about the FTC’s Endorsement Guides?

A:        Visit the FTC’s website business legal resources page at http://business.ftc.gov/legal-resources/5/33 for more information.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Alan J. Hartman, a partner and head of the Technology Practice Group at Dressman Benzinger & LaVelle psc. For more information on a variety of legal topics, visit the OSBA’s website at www.ohiobar.org. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.