Ninth Circuit severs the “debt collection” exemption of the TCPA in dispute over social media text messages

On June 13, 2019, the 9th Circuit handed down a decision in Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019), which has at least partially brought into question the future of the Telephone Consumer Protection Act (“TCPA”).

Around January 2014 Facebook started sending Noah Duguid sporadic text messages, alerting Duguid that an unrecognized browser was attempting to access his Facebook account. The messages followed a template akin to “Your Facebook account was accessed [by/from] <browser> at <time>. Log in for more info.” While this type of message may be alarming to the everyday Facebook user believing their account may be hacked, these text messages alarmed Duguid for a completely different reason – he does not have a Facebook account. Continue reading

Deepfakes: Fake videos need real remedy

Your friend tells you they saw a video of you on social media. You look it up. The person in that video looks like you. That person even sounds like you. To make matters worse the video shows this counterfeit version of you doing something incredibly embarrassing. You have never done what the video is portraying and yet here it is online forever. You have just been victimized by a deepfake.

What is a Deepfake?

Deepfakes (short for ‘deep learning’ and ‘fake’[1]) use AIs trained in audio and video synthesis to manufacture fake videos. The AI system itself is based on adversarial generative learning.[2] These AIs are able to learn how a face moves from a bank of photos that a user inputs. It then superimposes that face onto the body of someone else in an unrelated video. Continue reading

Social Media Activity Used as Evidence of Employees Violating Cell Phone Policy

In an August 1, 2019 post titled “Without Proper Enforcement, Even the Strongest Social Media Policies May Not Protect Employers,” we discussed how enforcement of corporate social media policies was paramount to protecting employers from liability stemming from employee violations of that policy. That post discussed how employers must take care not only to formulate comprehensive social media policies, but also to provide thorough training and ensure rigorous enforcement of those policies to its employees and managers.

In keeping with that theme, this article examines a specific illustration of the importance of maintaining and enforcing corporate social media policies. Continue reading

To regram or not to regram? Legal implications of reposting content to social media

Most of us are familiar with Instagram – a social media engine, primarily utilized in its all-too-familiar form of a phone application, that allows users to share images and videos of themselves or others for public viewing and potential recognition.

With the increased popularity of photo-sharing social media tools like Instagram, users have begun to wonder more about what, if any, intellectual property rights they may own to the content they publish to such sites. In a previous post, we discussed the legal implications of posting content to social media and found that the user is often the primary owner of their content.

This begs the question – if each user is the owner of the content he/she posts, what, if any, are the legal implications of reposting the content of another user? Continue reading

Without proper enforcement, even the strongest social media policies may not protect employers

In a March 8, 2019 post titled “New California laws may require review of social media policies,” we explored how a host of new California laws would require a close review and revision of corporate social media policies.

That post discussed the role social media policies play in helping employers sidestep legal landmines by preventing wage and hour violations, unauthorized disclosure of the company’s trade secrets and other confidential information, violations of the Federal Trade Commission Act arising from an employee’s promotion of company products, infringement of third party intellectual property rights, employee harassment, and privacy violations.

Equally important, if not more so, is the enforcement of those policies. Simply put, even an airtight social media policy may not protect a company from liability for employee violations of that policy. Two recent cases in California federal district courts illustrate some of these potential pitfalls. Continue reading

Social media and corporate executive responsibility

Corporations that sell to consumers and are subject to consumer lawsuits commonly receive deposition demands for top executives. Corporations can frequently defeat these demands by showing that the executives did not participate or have control over the matter at issue. But a recent ruling from a federal trial court in California demonstrated how controlling social media content can help change that result, leaving a CEO as a defendant in a consumer class action alleging fraud and false advertising. (Kamal v. Eden Creamery, LLC, No. 18-cv-01298-BAS-AGS (S.D. Cal. June 26, 2019).) Continue reading

The Right to Write

How important are online reviews in your shopping experience? Many rely heavily on consumer reviews in order to generate business. But what happens when instead of providing customers the candid information that they deserve, companies try to silence their critics in order to improve their online reputation?

In recent years, companies selling products and services have included non-disparagement clauses (“gag clauses”) in their contracts in hopes of curtailing online criticism. Gag clauses are aimed at discouraging customers from writing honest reviews that criticize the company—and punished customers for their negative reviews in the form of liquidated damages. The problem is such clauses are illegal. In 2016, as we had previously written, Congress passed the Consumer Review Fairness Act, which prohibits companies from implementing gag clauses in non-negotiable consumer form contracts. In so doing, lawmakers sought to encourage free speech, consumer rights and the integrity of truthful criticism regarding goods and services sold online. Continue reading

Doxing the age of social media

Online privacy is a fantasy for many people. We voluntarily post information about every aspect of our lives. Information we do not publicize can often be extracted from website data or our personal accounts (email, social media, etc.). Our privacy and sensitive information is often in jeopardy. What happens when our private and sensitive information is disseminated online to millions of people against our will? This is known as doxing. Continue reading

Federal judge limits advertisement on social media in trade dress lawsuit

On April 10, 2019, a Texas federal judge granted Sparrow Barns & Events an emergency temporary restraining order and preliminary injunction in a trade dress and copyright infringement case, preventing defendant Ruth Farm from advertising its venue rental business on social media and the internet. Sparrow Barns & Events, LLC v. Ruth Farm Inc., No. 4:19-CV-00067 (E. D. Tex. Apr. 10, 2019) (2019 WL 1560442).) Continue reading

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