The anonymity of the Internet has posed many challenges to the protection of intellectual property rights. The sheer size of the population of online users and the millions of file-sharing programs and other social media outlets that exist have left IP rights holders struggling to protect their property and goodwill in the digital era. For example, the battle between protecting copyright online while simultaneously protecting the privacy rights of online users has led to interesting debates in the courts as well as new IP strategies that are currently being explored.… Continue Reading
On 9 March 2016 the Düsseldorf Regional Court in Germany ruled that an online shopping site, Peek & Cloppenburg, which integrated Facebook’s “like” button into its website had violated users’ privacy rights.
How the “like” button works
The button allows website users who click on it to share instantly the pages and content from the website on their Facebook profiles. This technology is a rapidly-growing marketing tool.… Continue Reading
A South African high court recently ruled that a civil litigant’s private Facebook messages, which were unlawfully obtained by the hacking of his personal account, were nevertheless admissible as evidence against him.
In Harvey v Niland, the litigants were members of the same corporation. Niland was also an employee of the corporation. After leaving his employment on bad terms, he remained a member of the corporation. Harvey sought a court order to prevent Niland from soliciting the corporation’s existing customers for his new employer and damaging the corporation’s reputation, in breach of his fiduciary duties as a member of … Continue Reading
One of the keys to a successful social media presence for businesses is real-time engagement and quick response times. “Social listening” can help businesses tap into consumer sentiment in order to engage with their audience effectively and to elevate their brands.
What is social listening?
Social listening constitutes tracking conversations on social media that mention particular words, phrases, or brand names in order to connect with the people involved and to leverage those communications in order to promote a brand or business. One part of social listening is monitoring particular instances – a hashtag, an @mention, a Facebook tag, etc. … Continue Reading
Our Top Five stories from 2015 also provide some “lessons learned” or considerations for companies who are considering using social media in 2016:
- Know what data you are collecting and where it is being transferred. Like more than 4,000 companies, Facebook had been sending member data of European citizens to the United States pursuant to the EU/US Safe Harbor. In October 2015, the European Court of Justice struck down the EU/US Safe Harbor, leaving companies scrambling to find an alternative way to send personal data from the European Union to the United States. Although the successor to the EU/US Safe
The Social Media Law Bulletin is back!
The ongoing interest of our readers as well as the increasing impact of social media led us to re-launch the Social Media Law Bulletin. We will be bringing you coverage of one or two items approximately each week, but in the meantime, we thought we would give you a brief summary of some of the most significant social media stories from 2015:
Schrems v Facebook
Facebook earned the top spot in our social media impact list, due to a court ruling that only indirectly affected it. In October 6, 2015, the European Court … Continue Reading
A recent report by the Science and Technology Committee (a UK parliamentary select committee) on the Responsible Use of Data (the Report) concludes that online terms and conditions for the use of social media platforms are unnecessarily complex and may not serve their intended purpose of obtaining informed consent from a user for the right to process personal data.… Continue Reading
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.
You are responsible for your information. It is important to understand how your information is being used.
You may choose to opt-out of your information being collected for targeted advertising. Before racing to … Continue Reading
After January 1, 2015, individuals whose wills are governed by Delaware law can have their digital assets and digital accounts accessed and controlled by their personal representatives of their estates, courtesy of a new Delaware law. Modeled on the uniform model Fiduciary Access to Digital Assets Act, the Delaware law vests the decedent’s personal representative with the same authority as the owner of the digital assets. Upon request of the personal representative for access to, transfer of, copy of, or destruction of the digital asset, the online service provider/web site has 60 days to respond to such a … Continue Reading
The popular social networking app “Secret” has reportedly been temporarily enjoined in Brazil. A civil court in Brazil ordered both Google and Apple to remove Secret from their respective app stores, and to pull the apps from the phones of their users.
In its opinion, the Brazilian court raised concerns that Secret’s anonymity feature can become an instrument of cyberbullying. Indeed, the case was brought by a young marketing consultant who complained of intimate photos of himself being shared anonymously, leaving him no legal recourse.
Brazil is not the only jurisdiction dealing with anonymity issues related to social media. In … Continue Reading
The United States District Court for the District of Kansas recently clarified the scope of discoverable information from private social media accounts.
In Stonebarger v. Union Pacific Corp., a wrongful death case where plaintiffs were seeking to recover damages for the deaths of two individuals killed in a collision, the defendants requested two types of information from plaintiffs’ social media accounts: (1) all account data for each plaintiff’s Facebook page, and (2) all photographs posted, uploaded or otherwise added to any social networking sites or blogs since the date of the accident.
Plaintiffs asserted various objections (including relevancy, … Continue Reading
We had previously written about the U.S. Federal Trade Commission’s proposed complaint and consent with mobile messaging service Snapchat, best known for promoting its “ephemeral” photo messaging site. The FTC alleged the Snapchat violated the Federal Trade Commission Act through six false or deceptive acts or practices, including Snapchat’s claim that messages can “disappear forever.” Under the proposed FTC consent, Snapchat does not admit or deny any liability. If approved and to settle the matter, Snapchat would be:
- Prohibited from misrepresenting its products and services and treatment of personal information, or their privacy and security; and
- Required to implement a
Companies can now reach their target audiences more quickly and more effectively by taking advantage of instantaneous posting of pictures and blogs. The use of social media apps that allow the quick exchange of photos to other users is rapidly growing.
The US Patent and Trademark Office published, on May 29, 2014, a patent application submitted by inventors from Facebook directed to a method for managing the accessibility of a social network based on the age of its users. In referencing the Children’s Online Privacy Protection Act (COPPA) directly, Facebook’s patent application suggests that Facebook may soon officially open its service to users under the age of 13. Many social networks, including Facebook, currently bar users under a particular age because COPPA requires parental consent for many of the actions such a user may take. For example, geolocation information or the … Continue Reading
On May 8, 2014, the US Federal Trade Commission (FTC) proposed for public comment its draft complaint and consent with mobile messaging service Snapchat, best known for promoting its “ephemeral” photo messaging site. (See our previous posting here.)
The FTC’s complaint claimed that Snapchat violated federal law (Section 5 of the FTC Act) with the following 6 false or deceptive claims:
- Contrary to Snapchat’s claims, “a message may not disappear forever after the user-set time period expires” due to widely publicized third-party apps, and a security flaw Snapchat purportedly was aware of (from a security researcher) for 10 months
When you tweet you:
- grant Twitter a licence to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute content in any manner or method. Twitter may sublicense these rights to third parties without restriction.
- allow Twitter and any third party to share your content with the rest of the world.
- agree that Twitter and third party sites can use your content (including information about you shared by other users) to provide you with targeted
If your social media page permits a user to purchase goods or services from you, a December 20, 2013 ruling from the Northern District of California may be of interest.
The case involves minors using their parents’ credit cards without authorization (in 2011) in order to purchase several hundred dollars’ worth of Facebook Credits.I.B. v. Facebook, Inc., No. C 12-1894 CW (N.D. Cal. Dec. 20, 2013).
When the parents discovered the unauthorized purchases, they asked Facebook to refund the purchase price. Facebook refused, and both the parents and minors instituted a putative class action against Facebook in 2012.… Continue Reading
Yesterday’s hilarious Facebook photo can easily become today’s biggest regret. Hence, the explosive rise of the new photo-sharing app, Snapchat. Snapchat allows users to create “Snaps,” user photos with built-in self-destruct timers. Users can decide how long the recipients can view the photos after which time they are permanently deleted from both the recipient’s device as well as from Snapchat servers. Viewing times are set for between 1 to 10 seconds. Wikipedia, Snapchat (last modified 8 December 2013).
The rise of Snapchat is appealing from a business marketing perspective. For example, Snapchat could be used to promote a company’s … Continue Reading
On July 10, 2013, U.S. Representative John Duncan (R-Tenn.) and co-sponsor Ileana Ros-Lehtinen (R-FL) introduced H.R. 2645, the “Forbidding Advertisement Through Child Exploitation Act of 2013.”
The stated purpose of this short bill is to “prohibit providers of social media services from using self-images uploaded by minors for commercial purposes.”
Under the bill, a “social media service” is defined as “any online service that allows an individual to upload, store, and manage personal content in order to share the content with other individuals.”
Section 5 of the bill also defines the key term “self-image” as: “with respect to … Continue Reading
The Electronic Communications Privacy Act (“ECPA”) prohibits interception of “any wire, oral, or electronic communication.” 18 U.S.C. § 2511. Electronic communication is defined as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.” 18 U.S.C. § 2510. This does not include stored communications (see the Stored Communications Act), wire or oral communications, or tracking devices. Users may also not use any device designed to intercept electronic communications, disclose to another the means to intercept electronic communications, or knowingly use the … Continue Reading
Congress woman Zoe Lofgren recently introduced a bill intending to align the Electronic Communications Privacy Act of 1986 with the current state of technology, especially with respect to cloud computing. The Online Communications and Geolocation Protection Act, backed by tech companies such as Google, Apple, Microsoft, Intel, Twitter, eBay and Amazon, intends to clarify and apply 4th Amendment constitutional protections to online communications and location data. If enacted, it would preclude the interception and/or disclosure of geolocation information. Likewise, no entity would be permitted to use geolocation information obtained in violation of the … Continue Reading
Should companies with social media pages be concerned with dissemination of their information to other entities, such as current or potential competitors?
Some privacy groups think so, and warn that a user of popular social media site Facebook may well find his/her/its private data shared with an unexpected entity.
In Facebook, for example, this newly shared information could include historical data about visitors, usage, likes, and reposts.
The Electronic Privacy Information Center (“EPIC”) and the Center for Digital Democracy issued an open letter to Facebook CEO Mark Zuckerberg, on November 27th, criticizing three proposed changes to Facebook’s governance policy as … Continue Reading
When can a party to a lawsuit get access to another party’s Facebook-posted materials for discovery purposes without violating privacy rights?
On November 14, 2012, New York’s Appellate Division ruled on that question in an auto accident/personal injury matter involving two plaintiffs. See Richards v. Hertz Corp., No. 2011-02807 (N.Y. App. Div. Nov. 14, 2012.
During a July 2009 deposition of one of the plaintiffs, she testified that the injuries she sustained as a result of the accident impaired her ability to play sports, and caused her to suffer pain that was exacerbated in cold weather.
The defendants … Continue Reading