Drafting Effective Social Media Policies in Healthcare by yaofenji


									Managing the Legal Risks of
       Social Media

       Daniel Goldman
        Legal counsel
         Mayo Clinic
     What is “Social Media”?

• “social” websites in which users
 interact with the site and each other
• interconnected networks of friends
 or followers
The Power of Social Media

The Social Media Revolution
    Major Social Media Sites

• Facebook
  •King of the hill: 500 million active users. 250
  million logon each day
      Major Social Media Sites
• MySpace
  •Started the revolution; now a historical artifact
  •Younger demographic
  •Shifted focus to music and entertainment
  •200 million users
  •May be in death spiral: 1/11 laid off 50% of
  work force
      Major Social Media Sites
• Twitter
• Broadcast texting to “followers”:
   • 140 character “tweets”
   • Can include links
• Subscription model
   • “Follow” people to get their tweets
   • People who follow you get your tweets
• Claims 175M active users
• 1B tweets sent weekly

• Become a business tool
  • Channel for sharing professional
        • HIPAA breach notification rules
        • Red flag rule postponement.
        • New Massachusetts privacy revisions
  • Huge marketing reach
     • Quick, nimble, dynamic
     • Able to quickly interact with massive
       numbers of customers/potential
Twitter: Companies Engaging With
          their Customers
      Major Social Media Sites

• Linked In
    •Professional Networking Site
    •Can post status updates and send
      Major Social Media Sites

• YouTube
   •Video sharing site
   •300 million visitors per month
      Major Social Media Sites
• Yammer
   •“private” social network for companies
   •Used by 90,000 companies; 80% of F500
      Major Social Media Sites
• Location-based social media sites
   • Foursquare
      • Check in at various locations to let others
        know where you are
      • Become “Mayor of a location”
      • Earn rewards/discounts from retailers
        based on number of check ins
      • Leave reviews/comments on
      • 200k users 12/09 5M users 10/10
   • Major sites adding location/check-in features
      • Facebook Places
      • 30M users have tried
Location-Based Social Media:
    Who’s Using Social Media:
• Recent Harris poll (1/11)
   • 65% of Americans report
    themselves a social media users
     • Up from 35% in 2008
     • Older users rise dramatically
        • Baby boomers (46-64) 9%-43%
        • Mature (65+) 4%-16%
    Who’s Using Social Media:
• 80% of Fortune Global 100
 companies use some form of social
 media (blogs, twitter, facebook)
• Most used:
  • Twitter: 60%
  • Facebook: 54%
  • YouTube: 50%

     Source: Burson-Marsteller Fortune
       Global100 Social Media Study 2/2010
     Social Media Adoption in
• 906 US hospitals using social media
 (approx 15%)
   • 719 Facebook pages
   • 674 Twitter Accounts
   • 439 YouTube Channels
   • 439 LinkedIn Accounts
   • 106 Blogs

    Source: www.edbenett.org
     Most Popular Twitter feeds
• Mayo Clinic (MN/AZ/FL):
• St. Jude Children’s (TN)
• Children’s Nat’l Med Ctr (DC)
• Emory John’s Creek Hosp (GA)
• Aurora St. Luke’s (WI)
   • 8,300
   Most popular Facebook Pages

• St. Jude’s (TN)
    • 338,000 fans
• Children’s Hospital of Boston (MA)
    • 475,000 fans
• Arkansas Children’s Hosp (AR)
    • 76,000 fans
• Mayo Clinic (MN/AZ/FL)
    • 35,000 fans
• VHA (DC)
    • 30,000 fans
 Common Uses of Social Media in
• Deliver information
   • health and wellness
   • Your hospital/brand
• Connect and interact with patients,
 potential patients and “friends” of your
• Foster online communities
   • Patients and individuals can interact
     with each other re health and your
Benefits of Business Use of Social
• Interactive nature: Dialogue not
  • More meaningful interactions
  • Chance to listen as well as speak to
    your customers: free market research
• More trusted than advertising
• Community
   • Particularly powerful with health issues
   • Esp significant/chronic health
     conditions (e.g. depression)
    Benefits of Business Use of
           Social Media
• It’s where the people are, esp. under 30
     • Can interact with/influence large
     numbers of people
• It’s free
• Did I mention that it’s free?
  Why is Mayo Clinic Involved in
          Social Media
• Build our brand
   • How our brand has grown for last
     100 years
   • Hi-Tech WOM
• Powerful tool to deliver health
• Power and immediacy of community
 Benefits of Using Social Media in
• “Social media gives me access to a world of people living
  with type 1 diabetes, just like me. Any hour of the day or
  night I can tune in to discussions on Twitter or Facebook, I
  can read thousands of blog posts written by people from all
  walks of life, all living with type 1 diabetes, and I can find
  YouTube videos that make me laugh and cry. I can find
  connections. I can find people who understand exactly what
  I’m going through. These people and their stories become
  an emotional lifeline. Suddenly I don’t feel so alone or
  isolated. In fact I often feel inspired and empowered by what
  I’ve seen.”
• Scott Johnson http://www.diabetesdaily.com/johnson/
         Mayo Clinic:
Facebook, Twitter, Youtube, Blog
Changing Health Communication

               • Mayo Clinic Center for Social
                   •Create resources for use
                   at Mayo Clinic that can be
                   shared with organizations
                   wanting to use social media
                   in health and health care

               • Social Media Health Network
                   •Membership group for
                    orgs wanting to use social
                    media to improve
                    •Sharing, Collaboration
                    development of resources
    Challenges of Social Media

• Speed
   • Interconnected nature of social
    networks means information
    moves quickly
  • Less time to analyze and react
    than traditional media
     Challenges of Social Media
• Reach
   •Social media gives individuals access
   to staggering numbers of people
     Challenges of Social Media
• Reach
   • “United Breaks Guitars" video on
    YouTube: 10 million views
      Challenges of Social Media

• Blurring of professional/personal
  • Most social media sites encourage sharing of
      info about professional lives
  •   Difficult to separate what happens at work
      from other events in your life
  •   Difficult to not reveal where you work
  •   Many challenges when lawful personal
      conduct is in tension with professional
  •   Particular challenge in professions such as
      healthcare/legal with high ethical expectations
    Challenges of Social Media

• Generation of “lifecasters”
   • Expectation of sharing of all
     details of life
   • Including what happens at work
   • Not the same expectation of
     privacy as older generation
   • In tension with increasingly strict
     privacy laws
  Challenges Unique to Specific
• Privacy
  • HIPAA, GLBA and state privacy laws make
    information sharing a challenge in privacy-
    regulated industries such as healthcare,
    financial services, legal.
  • Stakes are high if employees act
      • Fines, lawsuits
      • PR and Brand risks
  • Can limit your ability to respond to critics and
    unhappy customers
Ethical Issues: “Friending” Clients

• Raises challenging issues regarding
 appropriate boundaries for
 professional relationships
  • Blurs what is and isn’t part of the professional
  • Particular issue with respect to lawyers
    friending judges and other litigants/clients,
    physicians friending patients
  • Professions are just beginning to sort out the
    ethical issues
 Managing Risk Through Social
Media Policies: General Thoughts
• No “one size fits all” approach.
   • Policy is as much a reflection of
     corporate culture as law
   • Must understand your company’s
     brand, tolerance for dissent and
     risk, relationship with workforce
     and balance that with what the law
 Social Media is a Dialogue, Not a
• Traditional marketing/advertising
   • billboard
   • Pro: Advertiser controls message
   • Con: People no longer trust, no ability to hear
     what customer wants
• Social media
   • Conversation
   • Pro: interactive, people trust, you can hear
     what’s important to your customer
   • Con: much less control. “Community”
     expects you will respond to criticism, not
     “censor” it.
 Social Media is a Dialogue, Not a
• Expectation is that people will talk back to
 you, and that you will listen.
• Must have a thick skin to participate in
 social media
• You may have to tolerate some things you
 don’t like
  • Esp challenging in Healthcare: HIPAA
    limits your response to criticism
 Social Media is a Dialogue, Not a
• Even if you can respond, should you?
 Social Media is a Dialogue, Not a
• However: cannot really “opt out” of social
  • You can choose not to participate
  • HOWEVER, it doesn’t mean
     patients/customers competitors aren’t talking
     about you.
   • If you don’t participate, you’ve lost your
     opportunity to participate in/shape the
Tolerating Criticism
Tolerating Criticism
Tolerating Criticism
      Employee Education and
       Awareness are Critical
• Make sure policies are accessible: on your
• Make sure your employees receive training
   • Include examples, not always obvious
     what’s a HIPAA violation or practice of
• The best policies are useless if employees
 aren’t aware of them, don’t understand
     Expect and Plan for Crises

• Speed/Reach of social media mean
 crisis will happen with extraordinary
• Little time to react/difficult to reign in
     Expect and plan for crises

• Domino’s pizza: YouTube video showing
 employees tainting food
  •1 million views in 2 days
• Identify a crisis team and a crisis plan
 before a crisis happens

• Build off the work of others
• Many people thinking about this
 issue: many good approaches
• List of policies in written materials
   Drafting Social Medial Polices
 Issues to Address in Your Policy
• Use of social media during work time
   • Most companies will prohibit
   • Some will encourage
   • Can often be addressed by
    existing policies
  • Can you enforce an outright ban
    with mobile devices?
 Stress Importance of Preserving
         Customer Privacy
• Critically important, esp in privacy regulated
  industries (e.g. healthcare, financial services).
  Legal and brand/pr risk
• Lifecasting mentality+ speed + ease of posting
• numerous instances of healthcare employees
  breaching privacy via social media (see written
    • Not always intuitive how privacy applies online
    • Lack of name not always enough to de-identify, esp in
      smaller community
    • E.g. HIPAA applies to patients who are real-life friends
    • Incorporate examples into your education
       Stress Importance of
     Professionalism Towards
• Appropriate professionalism may be as
 important as legal privacy restraints
   • Employees complaining about
     customers, even if de-identified can
     raise brand issues
Identify Who Can Speak on Behalf
          of the Company
• Let employees know who can
 officially speak on behalf of your
• Usually only designated PR
• Others must refrain from making it
 appear that they are
• Consider requiring disclaimers:
   • “These are my personal views”
   Address the “Blurring” Issue
• Two choices for employees:
   • If engaging in behavior
    incompatible w brand/profession
    no identification with employer
  • If identify themselves as
    employees should not display
    inappropriate behavior
   Address the “Blurring” Issue
• Some cautions:
   • NLRB beginning to restrict employers in this
      • NLRA Section 8(a)(1): unfair labor practice
        for employers to interfere with or restrain
        collective activity of employees
      • NLRB: talking publicly about working
        conditions, wages, workplace is protected
        collective activity
   Address the “Blurring” Issue

• American Medical Response of
 Connecticut Case
  • NLRB files complaint over firing of employee
    who criticized supervisor on Facebook
  • Employer’s policies:
     • Prohibited employees from posting
       pictures of themselves on the internet
       which depicts the company in any way
     • Prohibits employees form making
       “disparaging, discriminatory or defamatory
       comments when discussing the company
       or the employee’s superiors, co-workers
       and/or competitors
American Medical Response Case

  • From NLRB Complaint:
    • “Respondent engaged in concerted
     activities with other employees by
     criticizing Respondent’s supervisor
     on her Facebook page.”
American Medical Response Case

• “This is a fairly straightforward case under
  the National Labor Relations Act — whether it
  takes place on Facebook or at the water
  cooler, it was employees talking jointly about
  working conditions, in this case about their
  supervisor, and they have a right to do that.”
  NLRB Acting GC
American Medical Response Case

• Feb 2011: Case settled.
• Employer agrees to rewrite policies
 to ensure it doesn’t restrict
 employees from discussing wages,
 hours and working conditions
Student Transportation of America
• Feb 2011NLRB files charge against
  • Social Media Policy was an unfair
    labor practice
  • Policy prohibits: the use of
    electronic communication and/or
    social media in a manner that may
    target, offend, disparage, or harm
    customers, passengers or
    employees; or in a manner that
    violates any company policy
   Address the “Blurring” Issue
• Bottom Line:
   • Stay up to date re NLRB decisions
      • Can’t prohibit employees from talking
        about terms and conditions of employment
        in a concerted matter (rule prohibiting
        false statements re employer)
      • Can’t prohibit employees from talking to
        the media re ongoing labor disputes (rule
        prohibiting all employee contact with
   Address the “Blurring” Issue
• Some cautions:
   • some states prohibit employers
    from regulating lawful off-duty
     • MN Stat 181.938 subd 2 (no
       termination for consumption of
       lawful consumable products
    Stress the Preservation of
     Business Confidentiality
• Employees should be reminded that
 they should not be discussing trade
 secrets and business confidential
 business information online
• Use examples: Even posting that
 you’re attending a meeting with a
 party you’re negotiating with can
 violate NDA
Prohibit Employees from Speaking
Anonymously or Pseudonymously
• Non-legal reason: considered
 dishonest and unethical in the social
 media community
• Legal reason: can violate the FTC
 endorsement/testimonial guidelines if
 recommending your products or
        Address the FTC
• Recently updated to specifically address
 social media
• Endorsers must disclose “material
 connection” which includes:
  • Free product to review
  • Employment relationship
     • Enforcement action v Reverb
      • Pr firm employees post positive reviews of
        clients’ apps on iTunes
      • Deceptive b/c no discslosure of
       Address the FTC
• Removes “results not typical” safe
 harbor. All claims must be
Restrictions on Lobbying/Political
• For tax-exempts:
• IRS regs prohibit TE’s from
 supporting candidates in campaigns
 and other types of political activity
• Make sure those participating in
 social media on behalf of your TE
 company understand what is and
 isn’t permitted
   Prohibit Harassment of Other
• Employees talk to and about each
 other on social media’
• Remind employees to follow
 applicable policies re mutual respect
 and non-discrimination and
 harassment online.
• Employer can be liable if aware of
 this harassing behavior occurring
 online and does not take action
 Respect Intellectual Property of
• Make sure those using social media
 on your company’s behalf
 understand the rules
  • Especially copyright and fair use
  • Misuse of materials of others can
    lead to infringement claims
Explain the Rules Regarding False
• Spell out what can and cannot be
 said about your own company’s
 products, as well as your
 competitor’s products
• This is another reason to be clear
 about who can and cannot speak on
 behalf of your company
  Dangers of Not Having a Social
          Media Policy
• “Placenta Case”
   •Nursing dismissed
   for unprofessional
   conduct for posting
   to FB
   •Court reinstates:
   •“Photos are taken to be
   viewed, and if the
   students were given
   permission to
   photograph the placenta,
   it became irrelevant what
   they did with the
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