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In the era of blogging and social networking, it's not just traditional news and publishing outlets that are producing editorial content. All types of businesses are upping their web presence in the hope of luring in new customers. But where the business side sees new marketing opportunities, the legal side sees potential violations of ever-shifting doctrines of copyright infringement, defamation, and invasion of privacy -- doctrines the average general counsel might not have contemplated since the bar exam.
"Intellectual property is becoming much more of an issue these days, as companies become more involved in the web and social media," says Nahum Kianovsky, vice president and associate general counsel at HealthFirst, a Manhattan-based nonprofit heath care company that markets itself on the web and on Facebook. "A key part of working in-house is having to learn about new aspects of law in order to spot red flags. So I'm required to think about the IP aspects of all these activities. That's not necessarily something the business or marketing people are thinking about."
In Kianovsky's case, that meant reading up on copyright and trademark law -- historically the domain of media lawyers, not general counsel at health care companies. "We need to be cognizant of the obligations any publisher has," he says. "Most people don't think twice when they take an article they find interesting and publish it on their Facebook page. So part of my job is to make my colleagues aware of exactly what it is they need to do to be compliant in this new digital age."
Because of its interactive nature, Facebook is a fertile breeding ground for potential liability, says Kianovsky. "Facebook inherently invites readers to talk back, which implicates privacy issues."
That's especially true for a company like HealthFirst. Its customers are also medical patients, so public exchanges on social media can easily run afoul of rules governing doctor-patient confidentiality. Kianovsky thinks that if a company wants to create a Facebook page, for example, it may want to consider limiting the ability of customers to post on its "wall" for all to see.
To help cover this new legal ground, Kianovsky turned to HealthFirst's outside counsel at Kane Kessler. Adam Cohen, chair of the firm's intellectual property practice group, walked Health First employees through a PowerPoint slide presentation on basics of publishing law.
Cohen says he has given this presentation "countless" times over his 20 years as an IP lawyer, but demand has increased in recent years. "Non-media entities have always had some media aspect to what they do, but now in an internet world there are more people inside the company involved in publishing than before," he says.
Not only are more employees producing content, but they are doing it more immediately than ever before. "It used to be that, with written material, there could be more vetting," says Cohen. Now that publication happens with the click of a mouse, "there isn't that same opportunity and the risks are higher," he says.
"I make these companies knowledgeable about IP issues just enough so that they know when their antennae should perk up," he says. "It's all about making the people on the ground aware of the issues, so they can spot an issue before it becomes a bigger problem."
Kianovsky says he appreciates the backup. "As a traditional brick-and-mortar company, [IP law] is not something we have been present for the development of. We jumped in midstream," he says. "It requires a concerted effort from any company to make sure everyone involved knows what their obligations are."
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