NLRB approves social media policy disclaimer language

The Office of the General Counsel (OGC) of the National Labor Relations Board (NLRB) recently released another advice memorandum providing enforcement guidance on employer social media policies. This time, the OGC reviewed a company social medial policy which required employees to post a specific disclaimer that they were sharing their own views and not the views of the company if they identified themselves as company employees on any website or blog.

The relevant portion of the policy stated:

If you identify yourself anywhere on a web site, blog, or text as an employee of USA . . . we require that you put the following notice in a reasonably prominent place on your site: “The views expressed on this web site/blog are mine alone and do not necessarily reflect the views of my employer, US Security Associates, Inc.

The OGC found this provision to be lawful. It explained that posting this disclaimer would not be burdensome for employees to implement or infringe on their Section 7 right to discuss working conditions. By way of background, the National Labor Relations Act protects an employee’s right to self-organize, form, join or assist unions, collectively bargain, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Although the advice memorandum does not constitute binding precedent, it provides useful guidance for employers looking to implement a social media policy with disclaimer language.

In an effort to provide additional guidance, the OGC reviewed the remainder of the social media policy. It determined that:

  • a provision encouraging employees to express themselves on social media in a “respectful manner” is not unlawful;
  • provisions preventing employees from publishing on websites or blogs “confidential information” and “material that violates the privacy of another” are unlawfully overbroad and could be construed to inhibit Section 7 rights;
  • a provision preventing employees from disclosing “sensitive information” on websites or blogs is unlawfully overbroad because the meaning of sensitive information was ambiguous; and
  • a provision prohibiting employees from referring to their employer’s website without prior written approval from the employer is unlawful. The OGC explained that employees could be hindered in exercising their Section 7 rights if they cannot refer third parties to the  website to garner support for their position.

This latest advice memorandum highlights the importance of a carefully crafted social media policy. Past blog posts have discussed other guidance from the OGC and provided examples of carefully drafted and clearly defined social media policies, including:


Heather Sherrod ( / +1 713 651 5163) a lawyer in Norton Rose Fulbright Houston’s intellectual property practice.

Proving the authenticity of a digital account at trial: a lesson from the second circuit

While certain state legislatures may be getting closer to understanding digital assets and digital accounts in trusts and estates, using digital assets and digital accounts as evidence in the federal court system remains a murkier proposition.

In United States vs. Vayner, 2014 WL 4942227 (Oct. 3, 2014 2d Cir. ), a jury had convicted the defendant on a single count of unlawful transfer of a false identification document. Crucial to the prosecution was a screenshot of the defendant’s social media page, which was used to show a relationship between the defendant and the prosecution’s key witness. The trial court admitted into evidence the screenshot, despite defendant’s objections that the screenshot was insufficiently authenticated―that is, there was insufficient evidence offered to prove that the defendant himself created the social media account, entered the text that appeared on the profile and added images and other media. On appeal, the Second Circuit agreed with the defendant’s objection and vacated the conviction and remanded the case for retrial.

Writing for the U.S. Court of Appeals for the Second Circuit, Judge Debra Ann Livingston noted that Rule 901 of the Federal Rules of Evidence (Authentication or Identifying Evidence) is a broad standard: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Although Rule 901 did not “definitely establish” the nature or amount of proof needed for authentication and, Livingston noted that under Second Circuit law “[t]he bar for authentication of evidence is not particularly high.”

Normally, the party offering a website or digital account into evidence can rely on uncontroverted direct testimony from the creator of the website or digital account in question. Since the defendant was the purported creator of the digital account, that testimony was not available. The prosecution relied on circumstantial evidence―the photo, work history and certain contact information were matched to the defendant.

The Second Circuit was unmoved: “The mere fact that a page with [the defendant’s] name and photograph happened to exist on the Internet at the time of [the investigator’s] testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.” The Second Circuit analogized the digital account to a printed handbill. If the prosecution had introduced “a flyer found on the street that contained [defendant’s] Skype address and was purportedly written or authorized by him,” the Second Circuit reasoned, “the district court surely would have required some evidence that the flyer did, in fact, emanate from [defendant].”

Therein lies the lesson of Vayner―while a screenshot of a website may prove that the content once existed, the screenshot alone will not prove who actually put the material on the page.

Jay Greathouse ( / +1 210 270 7155) is a lawyer in Norton Rose Fulbright’s San Antonio Corporate, M&A and securities practice.

Facebook blocks Facemba

In September, we blogged on the successful opposition by Facebook to a trade mark registration in Australia for ‘Friendbook’. Facebook has had further success in the Australian Trade Marks Office, protecting their brand through a successful opposition to an international registration of the trade mark FACEMBA.

Application 1504587 for the word mark FACEMBA was an international registration that designated Australia. It was filed in the name of company FACEMBA, LDA under the Madrid Protocol on 30 April 2012.

International trade mark registrations under the Madrid Protocol

The system of international registration of marks is governed by two treaties:

After achieving registration in a home country, a brand owner can apply to register their mark with WIPO. Following registration of the mark in the Madrid regime, brand owners can then ‘designate’ further jurisdictions where protection can be achieved using a streamlined system.

Each designated country still examines the trade mark in accordance with their own trade mark legislation, with opportunities to oppose registration in the designated jurisdictions.

Blocking FACEMBA in Australia

Facemba’s international registration originated from Portugal. The trade mark was filed in Class 38 for ‘provision of an Internet platform for social networking services’. Australia, Switzerland, China, Russia and Singapore were designated for registration.

IP Australia advertised its intention to extend protection to Australia in the Australian Official Journal of Trade Marks on 30 August 2012. On 28 February 2013 Facebook, Inc filed a Notice of Opposition. A hearing was held on 18 June 2014. Facebook was required at that hearing, on the balance of probabilities, to successfully establish at least one ground of opposition to the mark.

In this case, as with the earlier decision of Friendbook, Facebook was successful under section 60 of the Australian Trade Marks Act 1995 because

  1. Facebook’s trade marks, before the priority date for the registration of FACEMBA trade mark in respect of those goods or services, acquired a reputation in Australia; and
  2. Given the reputation of Facebook’s trade marks, the use of the FACEMBA trade mark would be likely to deceive or cause confusion.

Establishing reputation was hardly a hurdle for Facebook. As the evidence before the Hearing Officer indicated:

  • Facebook is arguably the worldwide leader in online networking services.
  • at the relevant time, Facebook had approximately 11 million active users in Australia and was the third most trafficked website in Australia. ‘Some 67% of Australian regular users use the FACEBOOK website, for an average of seven hours and six minutes per month.’
  • the Hearing Officer described Facebook’s revenue and advertising in Australia and globally under the FACEBOOK trade mark as ‘massive, which certainly fulfils the “substantial” requirement referred to above.’
  • the FACEBOOK branded social networking site has been the subject of ‘numerous books, a movie, third party case studies, printed and online press and brand surveys.’

Whereas FRIENDBOOK was confusing because of the ‘BOOK’ suffix, FACEMBA was likely to cause confusion because of the FACE prefix. As the Hearing Officer decided:

Having regard to the evidence of the Opponent’s reputation in the area of social networking and Internet platforms, I consider that deception or confusion with the Holder’s mark is likely. Consumers confronted with a social networking platform with the prefix FACE- would be caused to wonder if it was associated with the Opponent.

The Hearing Officer thought this particularly true given the University origins of Facebook, and MBA being strongly associated with a Masters of Business Administration.


An effective opposition in Australia has prevented the trade mark from being registered here.

Registration through the Madrid regime has been achieved in China (perhaps due to Facebook’s restricted presence there) and an application is on foot in Russia. Registration in Singapore was abandoned after a technical objection from that jurisdiction.

To the casual observer, defending an established brand from a new trade mark can seem ‘heavy handed’ or aggressive. However, while Australian trade mark law does not have a legal concept of ‘dilution’ in the same sense as the United States, it is crucial that trade mark owners are vigilant in ensuring they have up-to-date and ongoing protection. Facebook, for example, has a strong interest in maintaining their control of the prefix ‘FACE’ in the social media space; although a casual search of the Australian register reveals multiple ‘FACE’ marks already registered in Class 38. The risk to brand can be critical.

Trade mark watch services and brand portfolio reviews are effective tools. Given Facebook’s enviable position as a global brand, their brand protection strategy is sensible and, it seems, effective.

Appeals from the Australian Trade Marks Office are possible; however, it seems Facebook has managed to block FACEMBA for now.


Luke Hawthorne ( / +61 2 9330 8736) is a lawyer in Norton Rose Fulbright’s Australia IP practice.

Pre-suit discovery on social media

A Kings County, New York court has held that a plaintiff may obtain social media information (such as another’s user information and evidence posted through social media) as part of pre-suit discovery under New York law. This decision could have ramifications in a number of jurisdictions that permit pre-suit discovery to preserve evidence and/or obtain identities of witnesses or potential parties. See, e.g., Fed. R. Civ. P 27; N.J. R. Civ. P. 4:11-1; Tex. R. Civ. P. 202. N.Y. C.P.L.R. 3102.

In Lemon Juice v. Twitter, Inc., 44 Misc. 3d 1225(A) (N.Y. Sup. Ct. Aug. 29, 2014) the plaintiff complained that an anonymous third party had committed various torts (including intentional infliction of emotional distress) by posting information on a Twitter account containing the plaintiff’s name.

Pursuant to New York rules of civil procedure, the plaintiff sought an order directing Twitter to:

  1. disclose basic subscriber information, records, and IP addresses for the account at issue, and
  2. preserve certain evidence (i.e., the offending tweets and accompanying pictures).

The court held that the plaintiff’s allegations were sufficient to state a prima facie cause of action, which was a prerequisite under the rules to obtaining any pre-suit discovery and which was not contested by Twitter. Having made a prima facie case, the court held the identity of the anonymous user was necessary for the plaintiff to seek appropriate redress. Only Twitter had this information, so the court ordered Twitter to disclose the subscriber information sought by the plaintiff.

Similarly, the tweets and accompanying photos would be necessary evidence in prosecuting the plaintiff’s claim. The court therefore ordered preservation of this information as well.

As of November 11, 2014, Twitter has not appealed the decision.

This article was prepared by James V. Leito IV ( / +1 214 855 8004), an associate in Norton Rose Fulbright’s litigation practice group.

What does LinkedIn’s updated privacy policy mean for you?

You are responsible for your information. It is important to understand how your information is being used.

LinkedIn updated their privacy policy and user agreement on October 23, 2014. It is easier to read and understand in comparison to earlier versions. If you read through the policy it will give you an understanding of the types of information collected about you when using LinkedIn (and similar platforms) and what your rights are to opt-out of certain forms of collection of your information.

Targeted advertising

You may choose to opt-out of your information being collected for targeted advertising. Before racing to click the opt-out button, remember that this does not mean that you will no longer receive advertising. It means that the advertising you receive will no longer be tailored to you based on the information collected about you through your demographic and online behavior.

I often see website banner advertisements for shoes, bags and clothing, and unsurprisingly these are things that I would be interested in purchasing. Targeted advertising is not always a bad thing―if I opt-out of receiving the advertising that is relevant to me, I may end up receiving adverts for lawnmowers which are currently irrelevant to me. In addition, the information is used to send you relevant job opportunities.

The “internet of things” (the name given to connectivity between devices, for example phone to watch to computer to car to home) and big data (the name given to analytics of vast amounts of information) may result in targeting so accurate that you no longer need to remember when to purchase milk or buy your daughter a birthday present as you will be told when to do this, what to buy and how to get it.


Collection of cookies is regulated in some jurisdictions, such as the EU, where websites need to alert you to the collection and direct you to the opt-out facility. Similarly, turning off collection of cookies could result in a lower performance of the website features and functionality because it will not be able to store and remember what you like or which options you use most often. Cookies and other similar tracking technologies may also be used to track information about you on other websites unrelated to LinkedIn and its services.

Mail and syncing

Although you can opt-out of receiving some types of communications from LinkedIn, you cannot opt-out of receiving services messages. For example, the email you received to say that LinkedIn’s privacy policy was updated cannot be prevented. Information such as location data (e.g. IP address) is also collected for fraud prevention and security purposes, for example to identify malicious links and spam in your inbox.

When you sync your address books, LinkedIn stores that information which may include phone numbers and also uses that information to suggest connections to you.

Navigating the world of social media apps

Social media apps and networking websites are exploding in the world of social media. Just last year, Apple announced that its Apple iOS App Store reached a landmark 40 billion downloads and 775,000 apps for its platform.[1]  Companies are taking advantage of this rise of social media apps and many of them use more than one social media site to connect with users and to advertise their services. The social media landscape is rapidly changing, and the increased time and costs in adapting to these changes has incentivized companies to manage and control their social media activity.

Third party organizational apps are beginning to emerge that bring all of a company’s social media accounts together in one place. These apps are intended to assist corporations in managing their social media activity by making it quicker and more effective to use more than one site. For example, HootSuite is a social media app that is beginning to gain popularity. With HootSuite, all of a company’s social media accounts can be accessed in one place and managed with one simple login.[2]  Companies can access comments, messages, mentions, tweets, likes, pins, posts and Instagram messages in one convenient location rather than managing separate accounts.

Companies are not only faced with a rapid growth in social media networking sites, but the legal landscape is also rapidly changing. It is important for companies to consider the need to implement social media strategies that meet regulatory compliance across all facets of the organization. In addition, companies are faced with other legal implications of using social media, including in the areas of copyright, trade-mark, defamation and privacy law. In these circumstances, companies may wish to consider investing in social media policies designed to navigate the complexities of the legal system. Social media policies may address a number of issues including:

  • Procedures for using copyrighted material in company posts, blogs and other commentary
  • Procedures for handling complaints of copyright infringement
  • Procedures for using trade-marks of other users in company posts, blogs and other commentary
  • Procedures for handling complaints of trade-mark infringement
  • Procedures to avoid making comments or endorsing other users’ comments that could be considered defamatory
  • Procedures to govern the use and disclosure of personal information in social media, including safeguards to ensure compliance with local and federal privacy legislation
  • Procedures governing the use of electronic commercial messaging and SPAM
  • Procedures governing employee misconduct in the use of social media that could expose the corporation to liability

In order to navigate the world of social media apps, companies need to remain adaptive in their strategies and policies. Companies may wish to seek guidance as to how to maximize their exposure on social media, how to minimize their costs of managing social media, and how to comply with all applicable laws governing the use of social media in all relevant jurisdictions in which companies operate because many laws regarding social media vary by jurisdiction. And the laws and legal issues regarding social media are continuing to evolve, so it remains important to be aware of continuing developments in this arena.


Daniel Daniele ( / +1 416 216 2317) an attorney in Norton Rose Fulbright Canada’s Intellectual property practice.

[2] HootSuite:

Don’t tell bloggers about NAD wins

If a company sues a competitor about an advertisement that the company believes is false or misleading about the company’s product, a court victory is frequently cause for a press release, as well as announcements on social media and to bloggers.  When the complaint is made to the National Advertising Division (NAD) of the Council of Better Business Bureaus; however, those announcements can violate NAD procedures and can result in unfavorable press releases from the NAD.

Many of our readers may not be familiar with the NAD, which is run by the Council of Better Business Bureaus (CBBB), the national hub of locally situated Better Business Bureau organziations in the US and Canada.  Companies can challenge their competitors’ ads before the NAD in a voluntary proceeding that is confidential.  (There is a filing fee.)  The NAD program is part of the advertising industry’s process of voluntary self-regulation.  If the NAD finds that changes should be made to an advertisement, the company is not required by law to make those changes, but can appeal within the CBBB.  Even if the company loses on appeal, it is still not required to make the changes, but if it does not, the CBBB can refer the matter to the Federal Trade Commission or other federal or state government regulator.  If, however, the company agrees to change its ads in response to the proceeding, the NAD’s press release about the NAD decision frequently notes that fact and typically includes a quote from the company about its cooperation.

The NAD rules state that the proceedings are confidential and that only the NAD can publish final NAD case decisions and summaries of other actions, and only the NAD can issue press releases about them.  (Procedure 2.1.E(i).)  In addition:

(ii) By participating in a[n] NAD . . . proceeding, parties agree (a) not to issue a press release regarding any decisions issued, and/or (b) not to mischaracterize any decision issued or use and/or disseminate such decision for advertising and/or promotional purposes. NAD . . .may take whatever action it deems appropriate if a party violates this provision, including the issuance of a public statement for clarification purposes.

(Procedure 2.1.F(ii).)

Companies may find the NAD to be a viable procedure to complain about a competitor’s advertisements, but need to be aware that the rules are different from court proceedings.  Sending materials to bloggers—or even having the company describe the proceedings on its own blog—can turn a victory into a public relations defeat.

Sue Ross ( +1 212 318 3280) is a lawyer in Norton Rose Fulbright’s US intellectual property practice.

Agence France Presse v. Morel – THIRD UPDATE

We have posted previously on Agence France Presse v. Morel, the initial opinion of which was issued January 2013, as well as several updates in the case since then.

The case so far

Briefly summarizing the case so far, photographer Daniel Morel posted some photographs on Twitter.  Agence France Presse (“AFP”) copied eight of those photos, and provided them to Getty Images (US), Inc. (“Getty”), which then distributed the works to various infringing third parties. Getty continued to distribute the photographs, despite receiving a “kill notice” from AFP on the photos, and in 2010 Morel brought suit against AFP and Getty (as well as other news agencies). On motion for summary judgment, the court held the defendants liable for copyright infringement. Agence France Presse v. Morel, 2013 WL 146035 at *58 (S.D.N.Y. Jan. 14, 2013). After appeal, the case reverted back to the District Court, and a federal jury ruled that AFP and Getty were liable for, and thus ordered to pay Morel, statutory damages in the amount of $150,000 per photo, for a total of $1.2 million, the maximum statutory penalty available to Morel under the Copyright Act. Agence France Presse v. Morel, Civil No. 10-02730 (S.D.N.Y. Nov. 22, 2013).


Since the federal jury’s award, AFP and Getty moved for judgment as a matter of law and for a new trial, disputing the jury’s finding that their infringement was “willful,” which significantly increased the amount of damages available to Morel under the Copyright Act. On August 13, 2014, the District Court denied the motion, holding that the evidence on the record did not show a “seriously erroneous” verdict or a “miscarriage of justice” by the jury, and thus upholding the verdict and the (large) award.

As we have stated before, this case illustrates the potential harshness of federal penalties for copyright infringement. It also serves as an example of the potential liability a company can face under the Copyright Act, despite attempts to alleviate infringement through corrective action after the fact.

Read the District Court’s most recent opinion.

Justin Haddock ( / +1 512 536 3024) is a lawyer in Norton Rose Fulbright’s Austin intellectual property practice.

Yelp! survives complaint of extortion

Does a web site’s manipulation of publicly available positive and negative reviews rise to the level of extortion?  In a September 2, 2014 opinion, the Ninth Circuit said not necessarily.  In affirming the district court’s dismissal, the Ninth Circuit in Levitt v Yelp, No. 11-17676, stated that “unless a person has a preexisting right to be free of the threatened economic harm, threatening economic harm to induce a person to pay for a legitimate service is not extortion.”  Id. at 13.

Plaintiffs—all small business owners—filed suit under California’s Unfair Competition Law, alleging that Yelp! actively pushed negative reviews to the top of the results queue for businesses that did not advertise with Yelp!.  In addition, plaintiffs alleged that Yelp! would remove positive reviews altogether to give the businesses an overall lower “star” rating.  Finally, plaintiffs alleged that Yelp! itself wrote negative reviews of the businesses.  If the business owners were to advertise with Yelp!, the complaint stated, Yelp! would massage the reviews to improve the “star” rating and ensure potential customers would see more favorable reviews.  Yelp! moved to dismiss arguing that the allegations in the complaints, even if true, could not support a cause of action.

The Ninth Circuit only considered plaintiffs’ Unfair Competition Law claim, which required a showing of acts or practices that are unlawful, unfair, or fraudulent.  Extortion, as the court stated, is the obtaining of property from another induced by wrongful means, but according to the court, threats of economic harm are not generally considered harmful.  Slip op. at 13.  Because the business owners had no right to be free from negative reviews, no extortion existed under the Unfair Competition Law.

All may not be lost for business owners plagued by this issue, however.  The Ninth Circuit, on several occasions in the opinion, hinted that there may be additional causes of action available to the plaintiffs, such as trade libel law, breach of contract, tort of civil extortion, and the Communications Decency Act (“CDA”).  In addition, the Ninth Circuit pointed out that the plaintiffs brought forth no evidence of directly threatened economic harm (page 19) such as reputational harm (page 20).  In short, plaintiffs failed to allege enough factual content.

In the past, Yelp! has successfully invoked the CDA’s safe harbor clause against charges of negative reviews.  But at least one court has held that manipulation of third party content effectively ascribes authorship, at least in part, to the manipulator.  See Doctor’s Assocs., Inc. v. QIP Holder LLC, Civ. No. 3:06-cv-1710 (VLB) (D. Conn. Feb. 19, 2010) (denying motion for summary judgment that Quiznos’ solicitation of disparaging videos about Subway were protected under CDA’s safe harbor).

As a side note, the California Governor recently signed into law California Assembly Bill 2365, legislation nicknamed the “Yelp bill,” which will prohibit businesses from including “no disparagement” clauses in their consumer contracts.  The new law takes effect on January 1, 2015.

Seth Jaffe ( / +1 713 651 5370) is an associate in Norton Rose Fulbright’s Intellectual Property Practice Group.

Facebook “Likes” Found to Be Protected Activity

On August 22, 2014, in Three D. LLC d/b/a Triple Play Sports Bar and Grille, the National Labor Relations Board (NLRB) held that an employer violated the National Labor Relations Act (NLRA) after terminating employees for commenting on and “Liking” a former employee’s Facebook post.

In January 2011, a former Triple Play employee complained on her Facebook page that Triple Play Sports Bar had failed to deduct the correct amount of state income tax from her paycheck. Two current employees “Liked” the comment and responded with similar complaints.  When they arrived for their shift the following day, the owner of Triple Play questioned them about the meaning of the “Like” selection and whether other employees participated in the discussion.  Following the interrogation, Triple Play terminated the employees.

The NLRB interpreted the “Like” as an expression of approval of the initial post and thus could qualify as protectable, concerted activity.  In their brief to the NLRB, Triple Play conceded that the string of Facebook posts constituted concerted activity about wages and income tax withholdings.  Triple Play, however, argued that the Facebook posts and “Like” lost the protections of the NLRA because they were disparaging and intended to undermine the owner’s authority in the workplace. The NLRA does not protect comments that are disloyal or defamatory.

The NLRB disagreed with Triple Play, finding that the posts were not intended to disparage its business to the general public.  Rather, the Facebook comments were more akin to a private conversation than a public declaration because they were made on a “personal” Facebook page.  The NLRB also found that the posts were not defamatory because there was no evidence that the employees’ complaints about incorrect income tax deductions were untrue.

The NLRB also determined that Triple Play’s social media policy violated the NLRA.  The policy prohibited employees from “engaging in inappropriate discussions about the company, management, and/or co-workers.”  Because the employer was the arbiter of what constituted an “inappropriate” discussion under the policy, the NLRB found that employees would reasonably understand the policy to mean they were precluded from making the type of comments about wages and withholdings at issue in the case.  If you’re looking for more information about how to craft a social media policy that is designed to meet the NLRB requirements, see our previous posts:


Heather Sherrod ( / +1 713 651 5163) is a lawyer in the US employment and labor practice.