Minimizing Social Media Legal Risks

It is an old cliche but true – one size does not fit all.  When you download legal forms for entities such as Legal Zoom or E-Z Legal as was the case with Ann Aldrich in the article below, you have to remember that these are just what they are advertised to be – generic forms.  They are not geared to fit your particular situation or need – and – in most circumstances you will have that situtation or need.

Now, I am not saying that these entities do not provide a helpful service.  However, unless you understand all the ins and outs of what you are trying to accomplish when using the form,  which clearly Ann did not, the nominal price of the form (or even if it is free) may be the least cost effective purchase you ever make.

As we state;  Experience is not expensive, it is priceless.


Ann Aldrich used an “E-Z Legal Form” when she made out her will in 2004, a decision that proved to be a good choice for two nieces who cited the document’s lack of a residuary clause. In a decision issued last week, the Florida Supreme Court ruled for the nieces, though they weren’t mentioned in the will. The court said money acquired by Aldrich after the will was made out should be distributed under the laws of intestacy, which govern distribution of property for those who die without a will. The reason: The E-Z form did not have a residuary clause providing for the disposition of property not listed in the document. FlascBlog: The Florida Supreme Court Blog reports on the opinion PDF. Concurring Justice Barbara Pariente saw the ruling as a cautionary tale. “While I appreciate that there are many…

via Estate dispute caused by ‘E-Z Legal Form’ is a ‘cautionary tale,’ says justice.


Judith Delaney, J.D., CBC

The states of California, Michigan, Maryland, and Illinois as of this date January 8, 2013 have passed laws that make it illegal for companies to request social networking passwords or nonpublic online account information from behind the “social media wall” (as Nora Campos author of the California law calls it) from their employees or job applicants. If you are a student living in California, Delaware, Michigan or New Jersey they now have the same or similar laws that apply to academic institutions. So, congratulations if you live in one of those states. However:


While employers can’t demand that you as their employee give up your personal passwords, as an employee or prospective employee you should still exercise caution when you are deciding whether to post that “iffy” photo or video; or make a not-so-nice comment online, because employers can still view and use your public information posted on your Facebook, Twitter and other social networks to determine if you have done anything that could damage the reputation of the employer by retaining you as an employee or hiring you as one.

Judith Delaney, J.D., CBC
TurnsonPoint Consulting

1. Right of Instagram to sell the content you post or have posted as there appears to be no exemption to any of your previously posted content or current content.
Section 2 under “Rights” in the Terms of Use basically states that the Instagram Service “may” be supported by advertising revenue and in order to deliver interesting paid or sponsored content or promotions you agree that a business or other entity may pay Instagram to display your username, likeness, photos, and/or actions you take, in connection with paid or sponsored content or promotions, without compensation to you.”

What is important to note is that in Section 1 under “Rights” you have already granted to Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content (which includes all of the above) that you post on or through the Service.

  • Royalty-free” means in essence that you have waived your rights to any compensation in their use of your Content.
  • Sub licensable” means that Instagram can give your content to third parties, such as a retail chain who buys from Instagram photos of people shopping in their store so the store can run an ad.
  • It would be difficult to complain about a breach of privacy because in their Privacy Policy which they reference often in connection with the language in the Terms of Use, Instagram makes it very clear that they are only providing the platform for you to post your content, “including photos, comments and other materials” to the Service and to share such content publicly – This means that other “Users” may search for, see, use, or share any of your content that you make publicly available through Instagram “consistent with the terms and conditions of this Privacy Policy and our Terms of Use “
  • In addition they state in Section 8 under “Rights” that “as between you and Instagram, any of your content will be non-confidential and non-proprietary and Instagram will not be liable for any use or disclosure of your content; that
  • You acknowledge and agree that your relationship with Instagram is not a confidential, fiduciary or any other type of special relationship and;
  • Your decision to submit any of your content does not place Instagram in a position that is any different than that held by members of the general public and;
  • None of your content will be subject to any obligation of confidence on the part of Instagram and it will not be liable for any use or disclosure of the content you provide –

It would also be difficult to claim copyright infringement because by granting the license you are reinforcing Section 4 under “Rights” in which you represent and warrant among other things, that:

a. you own the content “posted by you or through the “Service “or otherwise [you] have the right to grant the rights and licenses set forth in these Terms of Use”; and

b. by posting and using your content on or through the “Service” you do not violate or infringe upon any third party’s Intellectual Property Rights, including without limitation, “privacy rights, publicity rights, copyrights, trademarks”

Therefore based on the above information, for all practical purposes you have waived all your rights to Privacy as well as any copyright infringement claims under the DMCA as you have (I) given them permission to use your content (inclusive of photos) and (ii) agreed to waive your rights of confidentiality; and (iii) given them all rights to use your content in accordance with the terms and conditions of the policy(ices) through the license grant.

2. Children. Instagram places the burden on you (and in reality your parents or guardian) if you are 18 years or younger depending on jurisdiction, by stating in the same Section 2 described in 1 above that “if you are under the age of eighteen, or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata) on your behalf.

It is important to note therefore, that would appear that there is no recourse against Instagram for violating children’s privacy.

3. Other concerns with the Instagram’s new Terms of Use/Privacy Policy. The updated policies significantly broaden Instagram’s rights from what they can currently do with your content, and how they are limiting your rights of recourse at law or otherwise. Following are some, but not all of these “other concerns”:

  • Arbitration: At the beginning of the Terms of Use in bolded caps, it states that any dispute between Instagram and a user “will be resolved by binding individual arbitration. However, it does not stop there under “Arbitration” you must agree that neither you or Instagram will participate in class action or class wide arbitration for any claims, unless prohibited by law, in which case the Arbitration section becomes “null and void. In other words, it then becomes a long, drawn out court battle. You can “opt-out” of arbitration but only by writing via snail mail to Instagram within 30 days of the date that you first become subject to arbitration.
  • Instragram’s liability: is limited to $100.00; and if you are going to sue you must file within one year after such claim arose, otherwise, your claim is permanently barred. You also waive the benefits a General Release forever under Section 1542 of the Civil Code of California and “any similar law of any state of terrirotry….”
  • Changing Terms of Use/Privacy Policy: Instagram reserves the right in both documents to change these documents “from time to time”. They only have need to provide “advance notice” of any changes (except for “legal and administrative” changes…another can of worms) by posting them at which time they are effective. If you continue to use their site from that point forward, then you have “agreed” to all such changes/additions.

Therefore your only recourse if you do not agree with the changes/additions is to terminate or deactivate (delete) your account. However, the “gotcha” is that they state unequivocally they have the right to continue to use your content “for a commercially reasonable period of time”

This article emphasizes how important it is to be very clear to employees as to how they could be liable for violating a company’s ownership in its proprietary information. It also sets the precedent for cases like PhoneDog vs. Kravitz.

My Friends are Your Friends? U.S. Court Rules that an Employer’s MySpace “Friends” List Can be a Trade Secret. By Andy Pushalik via Linkedin

Judith Delaney
Social Media Strategy Coach


What is Social Media?  Some will answer immediately with “Facebook”; others may throw in Twitter and YouTube.  The fact of the matter is today’s social media encompasses a broad sweep of Internet activities.  Oh to be sure they include Facebook and Twitter and YouTube, but social media is also email; employees; Linkedin; blogs; cloud computing; mobile tablets;; smart phones, etc. etc. ( For an even longer list you can check out

  • all of which is trackable and traceable;
  • All of it is memorialized in discoverable form; and
  • All of it available to millions with the simple press of “post”.

Social Media is not anonymous; audiences are not static; so

  • What is said in the living room is published on Facebook with its current 800 million users;
  • What businesses do in public and private is now broadcast on YouTube;
  • What Chief Executive Officers and employees talk about now appears as tweets on Twitter with its current 140 million users (as announced by Twitter March 21, 2012 in celebration of its 6th year).

How Should Businesses Deal With It?

Whether you are the entrepreneur, the small, the medium or the big, the technological shift in this country and the world has been so profound that a business cannot afford to use the “avoidance tactics” whether those are based on fear of the risks involved; or excuses like lack of time; or simply sticking one’s head in the sand.  In this economy social media is the leveler of the playing field.

In other words:  It is a new world and it is imperative that businesses have a long term integrated strategy that addresses both the business and legal drivers of  every part of its organization, from the board room, to the shareholder, to the executive suite, to marketing, to sales, to Human Resources; to research and development in the form of a  customized, written, living, plan that is  effective and defensible in order to protect the intellectual property, brand and reputation of one’s business, and that of its clients and/or customers as well.

Judith Delaney is Managing Principal and Social Media Policy Strategist at TurnsonPoint Consulting.  She combinies unique creative problem solving techniques, keen attention to details and unbiased advice and guidance to provide unique, trust based, strategic, leadership.  Judith spent the last 27 years building and managing legal departments as well as lead drafter and negotiator for companies such as SAP America, Sybase and Indus International.  Connect with Judith via; phone 1-415-244-1360, or email

Copyright 2012-2014  TurnsonPoint Consulting
All Rights Reserved

Judith Delaney
Social Media Legal Strategist

May 21, 2012

On March 18, 2012, Facebook went public and became worth “billions”. What that now means to you and your friends’ privacy, is Facebook now has to answer to a Board of Directors and Shareholders (investors). The pressure is on for Facebook to deliver a huge return to those shareholders for their investment. How do you think they are going to meet this goal? Before you answer consider this:

  1. Facebook’s business model is to collect, and you and your friends are willing to provide for free, as much personal/private information about you and your friends whether they are in the “a” group or the “other” group. Facebook, then provides that information to third parties via links or, through what some call “affiliate agreements” with large corporations such as Morgan Stanley, General Motors, etc. etc. in which the bargained for exchange is:

    Facebook gives those third parties access to you and your friends all and everything you and they post on Facebook , including the collection and summarization of biometric data from tagged photos of you and your friends, or now the “timeline” which allows them to collect personal and private data on you and your friends “way back when” FOR A FEE or COMMISSION (how do you think they became a multi-million dollar corporation ), and

    those third parties can in turn make millions even billions from you and your friends through targeted marketing and advertising of their products or services all without, in the real world, you or your friends’ specific consent.

    They do not appear to be moving in a direction of a different “business model”.

  2. They may have personal and private data on a billion people and provide that data to third parties without any specific permission from those users and “friends” of Facebook.
  3. They have no obligation to give prior notice to their users when they change their policies as to how they handle or what they do with that personal and private data.
  4.  There currently appears that there is no simple or viable way to correct or delete information that is already out there that may be detrimental to you or your friends via career or personal relationships, or for that matter anything to do with your life.

For Facebook to survive it will have to continue to sell your personal and private information – the question is, how far will it go in doing so to meet the monetary bottom line and

Do you care how the means, possibly substantially compromising personal and private aspects of you and your friends life, justifies the end (the monetary bottom line), or

Do You want the right to REALLY choose and control what an application can do with the personal and private information about your life?


opt in or opt out?

Judith Delaney
Social Media Legal Strategist
TurnsonPoint Consulting



Because social media data is intensely personal, issues
of how your personal information is used continues to grow at the same time
that social media use is exponentially increasing.  For instance, are you aware that service
providers such as Facebook are increasingly monetizing not only your personal/private
information and data but those of your followers by forging stronger channels
of communication between multiple social networking sites and cross linking
with other sites by automatically updating information put into one site to the
site of the cross linked partners? For example, when users hit that “like”
button on your Facebook page, unless they have  previously explicitly exercised their right to
Opt-out” (which currently is
the only choice you have in the United States to limit the use of your
personal/private information), ALL of one’s information by default becomes
public and can be sold to advertisers.

Now, in all fairness to the providers they do for the
most part put this information in their privacy policy. However, there is never
a clear button that says “I don’t want any of my information to be stored, and/or
reused”.  Therefore, most users remain
unaware of how their personal/private information is collected and what it is
used for, and are shocked when their private life they posted for the whole
world to see on Facebook, etc.  is used
for targeted advertising, or becomes a negative regarding their professional or
personal life.

There a Better Way? 
friends across the pond, who are stricter than the United States as it relates
to safeguarding consumer privacy online, decided to do something about this
invasion of privacy and in 2009 passed the “Cookies Legislation” which went
into effect on May 25, 2011. This new law applies to online behavioral
marketing and social networks to ensure that access to a user’s personal
(private) data is only permitted by an Opt-In
communication control to the user, allowing him/her to decide up front what
information he/she is willing to share while setting up his/her profile) before the service provider installs
the cookies (small files that track your online browsing history.

The irony of all of this is that in 2010 Facebook changed
it privacy policy from an Opt-in to
a standard opt-out.

So, did Facebook have it “right” in the first
place? Should Opt-in be the standard
for the United States as well?  Would it
be better to have a privacy policy that allows the user to choose what personal
information and data they want to make public, when they want to be contacted
(e.g. you can email me but do not contact me by telephone) which would enable
companies to provide focused and timely messages based on the user’s stated
preferences and more important protect the privacy rights of the user, rather
than the helter skelter manner based on Opt-out
that currently overloads users communication devices with full-scale marketing
assaults, and/or having personal information posted by third parties that may
negatively impact one’s ability to get a job; or gives information to a stalker
as to your personal address, etc.

It is your information and your life…..think
it about it.