Topic: Social media policies

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A two pronged prescription: The FDA releases new social media guidelines

The U.S. Food and Drug Administration (“FDA”) released two new sets of guidance regarding the use of social media to disseminate information about prescription drugs and medical devices.  This guidance supplements years of FDA warning letters and untitled letters sent to manufacturers, packers or distributors in regulated industries (each a “Regulated Entity”).  We have previously discussed the FDA letters on this blog.

In the first prong of its social media guidance, the FDA provided new “Twitter Rules.” For Internet and social media platforms with character space limitations (e.g., Twitter, Google AdWords and the paid search results links on Yahoo! and … Continue Reading

Online abuse

We have previously written about the difficulties that businesses can encounter when trying to get a posting removed from a social media site. We have also previously covered several matters relating to the special online protections legislators have created for children (e.g.COPPA).

These two areas combined in a local law passed by Albany, New York relating to cyberbullying. Bullying of children has long existed in schools, but advances in technology, including social media, have expanded both the frequency and extent of the problem. Albany addressed the issue with Albany County Local Law No. 11 of 2010, … Continue Reading

Social media: what happens when you delete your account?

When you delete your Twitter account:

  • You need to deactivate your account using your account settings.
  • Your account should be deactivated within a few minutes, but some content may be viewable for a few days.
  • Data is only retained for 30 days from date of deactivation after which it is deleted. Twitter retains its licence to use any content you post (see discussion on the licence in this post).
  • If you want to use the same username or email address on another Twitter account later, you must remember to change both before deactivation.
  • Your profile may still show up
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A picture can be worth a thousand links

From giant billboards on the highway to tiny pictures that can go viral within seconds, the use of social media sites like Instagram, Pinterest and Tumblr has revolutionized the advertising industry.

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.

Apps like Instagram are some of the top social media apps, bringing in more than 200 million active users around the world. See Twitter active users pass Continue Reading

Update – CANDY Mark Dispute

We have written previously about the trademark dispute in the US between Limited and Runsome Apps Inc., the creators of the mobile/social media/web games “Candy Crush Saga” and “CandySwipe,” respectively. It appears that the year-long battle between the two developers has ended.

On April 16, 2014, Albert Ransom posted this statement on the website:

“I am happy to announce that I have amicably resolved my dispute with King over my CandySwipe trademark and that I am withdrawing my opposition to their mark and they are withdrawing their counterclaim against mine. I have learned that they picked the CANDY

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Social media authentica-tion issues

The Mississippi Supreme Court recently set forth a standard for authentication of social media profiles and messages. In Smith v. State, 2012-CT-00218-SCT (Miss. 2014), the court addressed the admissibility of Facebook messages purportedly sent by the defendant in a capital murder case.

According to the prosecution, the defendant exchanged several Facebook messages with his wife regarding their relationship and the wife’s child from a previous relationship, who was the murder victim. To authenticate the messages, the prosecution offered the testimony of the wife, who stated that she had received the messages from the defendant. The prosecution also noted that … Continue Reading

US Federal Trade Commission to see Snapchat for 20 years

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:

  1. 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
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Contests on Pinterest and other social media; pin = endorsement

Companies frequently try to engage customers through social media in a variety of ways, including contests that involve photos of the companies’ products and brands. Fashion design company Cole Haan was investigated by the Federal Trade Commission (FTC) regarding a contest that asked contestants to pin five shoe photos from Cole Haan’s “Wandering Sole” Pinterest Board, as well as five photos of places where the users like to wander, onto the contestants’ own Pinterest boards. Entrants had to use the hashtag “#WanderingSole” in each pin description. Cole Haan offered a $1,000 shopping spree to the contestant with the most creative … Continue Reading

Do you “like” it?

From clicking “like” on Facebook to the +1 button on Google+ to the “Follow” or “Retweet” buttons on Twitter, the use of endorsements in social media has exploded since 2009. “Like” buttons and retweeting are growing trends in social media.  While the use of third-party endorsement type functionality in social media has obvious benefits in marketing and advertising, the increasing use of a “like” option in social media outlets may have legal implications for businesses.

A “like” button or similar type of “like” option is a feature in social media outlets such as social networking services, Internet forums and blogs … Continue Reading

Beware of the threatening tweet

Early April saw the arrest of a 14-year-old girl who sent a threatening tweet aimed at American Airlines.  Tweeting under her own account, this girl, identified only as Sarah, posted “hello my name’s Ibrahim and I’m from Afghanistan. I’m part of Al Qaida and on June 1st I’m gonna do something really big bye.”  American Airlines was quick to reply, tweeting back “Sarah, we take these threats very seriously. Your IP address and details will be forwarded to security and the FBI.”  This prompted a hurried retraction by the panicking girl in what turned out to be more of a … Continue Reading

Blog posts, commercial speech and false advertising

In Goodman v. Does, plaintiff Todd Goodman alleged various defamation and federal unfair competition (Lanham Act) claims stemming from postings on the website, a blog, which was run by the defendant Linda Lagoy. Goodman v. Does 1–10, No. 4:13–CV–139, 2014 WL 1310310 (E.D.N.C. Mar. 28, 2014). The court noted that Goodman, who was a licensed auto mechanic and owner of an automotive and transmission repair shop in Raleigh, North Carolina, was the target of an “extraordinarily aggressive smear campaign” on the website. In addition to articles regarding Goodman’s alleged criminal record, the website included articles and comments … Continue Reading

Mobile/ Facebook game developers face off in CANDY mark dispute

Our readers are probably familiar with a game that can be played on Facebook or on a mobile device known as CANDY CRUSH SAGA.  Also available on Facebook and on mobile devices is another game called CANDYSWIPE.  This posting summarizes the trademark application dispute between the two companies, one of which has leveraged the power of social media for support.

Earlier this year, an open letter to Limited, the developer of Candy Crush Saga, went viral, informing all who would read the letter by Albert Ransom, president of independent game developing studio Runsome Apps, which was written at the … Continue Reading

FDA and Facebook: Back to basics

The U.S. Food and Drug Administration (“FDA”) has issued numerous Warning and Untitled Letters[1] delving into very specific aspects of social media (such as “likes” on Facebook, tweets on Twitter and posts on Tumblr,  collectively, the “Social Media Letters”).  Recently, the FDA warned a drug manufacturer and its agent that even the “About Us” or “Company Information” section of a Facebook page must be comprehensive and must include the drug’s material facts and associated risks in order to avoid FDA charges of misbranding.

In the February 24th letter, the FDA alleged that the drug manufacturer … Continue Reading

Jurors and social media

A recent article published in the Duke Law and Technology Review sheds new light on the jury’s use (or more precisely, lack of use) of social media when given proper instructions from the Court. (See Amy J. St. Eve, et al., More from the #Jury Box: The Latest on Juries and Social Media, 12 Duke L. & Tech. Rev. 65 (2013)). While it is well documented that social media, such as Facebook and Twitter, can affect the scope of discovery or have an evidentiary impact on a trial, social media use can also impact the fairness of the trial.  … Continue Reading

Social media: did you know?

How many of us actually read social media terms of use? Be wary: you allow public information to be accessible over public search engines.

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
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Canada’s new anti-spam legislation casts a wide net

From Facebook to Twitter to YouTube to LinkedIn, sending electronic communications to others through the use of social media is becoming a central tenet of doing business. At the same time, the increasing use of social media has also contributed to the ongoing problem of “spam.”

Spam has become the vehicle for a wide range of commercial online threats that affect individuals and businesses. In an attempt to address the problem, new anti-spam legislation will take effect in Canada on July 1, 2014, introducing one of the most onerous pieces of legislation surrounding the regulation of commercial electronic messaging. In … Continue Reading

Identifying anonymous reviewers

On January 7, 2014, a majority of a Virginia appellate court held that a social media provider can be required to disclose the identity of its anonymous users. See Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., No. 0116-13-4 (Va. Ct. App. Jan. 7, 2014).

A Virginia carpet cleaning business had subpoenaed from Yelp the identity of certain Yelp users who posted negative reviews about the business. In particular, the business alleged that the reviews were false, defamatory, and did not match any customers in the business’s database. In response to the subpoena,

Yelp argued that the identities were protected … Continue Reading

District of Nevada OKs plaintiffs’ Facebook ad for collective action

A Nevada federal district court recently refused to enjoin plaintiffs’ counsel’s solicitation of potential class members via an advertising campaign on Facebook and Twitter.

In Gamble v. Boyd Gaming Corp., No. 2:13-cv-01009-JCM-PAL (D. Nev. Nov. 20, 2013), defendant Boyd Gaming accused plaintiffs’ counsel of using “false and misleading” advertisements in its attempt to identify and recruit additional collective action members.

According to the defendant, plaintiffs’ counsel set up a website and posted advertisements on Facebook claiming to represent “employees of Boyd Gaming who are owed overtime for work performed off-the-clock.”

The defendant claimed that an internal link to the … Continue Reading

Chances Are, Companies Will ‘Like’ Facebook’s New Contest Rules

In addition to laws regulating sweepstakes, contests, and the prizes given in such promotions, social media platforms such as Facebook, Twitter and Pinterest, each have their own written policies regarding running promotions and contests on their websites.  If marketers are non-compliant with these rules, they can risk having their contest or promotion removed, resulting in lost resources and unhappy promotion contestants.

On August 27, 2013, Facebook changed the terms of its promotion and sweepstakes guidelines, making it easier for a business to manage and administer contests and promotions on its Facebook page.  In a large shift from its … Continue Reading

Corporate Governance: Cyber Security Issues (Part II)

There are three distinct aspects of cyber-security that should be addressed by directors: prevention, detection and, if a company is publicly traded, disclosure to the Securities and Exchange Commission.  Part I of our posting addressed prevention and detection matters. This Part II addresses disclosures and some questions to consider.


Public disclosure of a security breach is not mandated by securities laws, although it may be required by other state or federal laws. The Securities and Exchange Commission said the following in 2011:

 Although no existing disclosure requirement explicitly refers to cybersecurity risks and cyber incidents, a number of disclosure … Continue Reading

Corporate Governance: Cyber Security Issues (Part I)

The use of cloud computing, mobile devices and social media add significant corporate risks beyond the traditional security risks arising from networks, databases and e-mail.  A cyber security breach can cause serious operational disruptions, create financial costs and damage a company’s brand and reputation.  As part of risk management, a company’s board of directors should proactively identify, delegate and monitor the security risks presented by networked businesses.  Numerous studies have concluded that directors are lagging in anticipating and preparing for cyber security risks. Boards Are Still Clueless About Cybersecurity, Jody Westby,, dated May 16, 2012.

While directors are … Continue Reading

Social media companies adopt alternative patent models

Social media companies are increasingly involved in patent lawsuits and frustration is setting in. Hoping to inspire change within the industry, a number of companies have adopted alternative patent policies. While these alternative models are based on the social good of sharing innovation with a promise to use patents only as a defensive shield and not as an offensive weapon, they may raise a host of unanswered questions.

Many social media and computer technology companies, as well as so called “patent trolls” or non-practicing entities, have large patent portfolios covering core aspects of social media and online user interactions. Companies … Continue Reading

Policies banning photos, videos and confidential information unlawful

On July 15, 2013, the National Labor Relations Board (“NLRB”) released a memorandum providing further guidance on whether a company’s social media policy could be construed to stifle protected, concerted activity.  Over the last two years, the NLRB Office of the General Counsel has issued several memoranda discussing the validity of employer social media policies in light of existing principles under the National Labor Relations Act (“NLRA”).

Section 7 of the NLRA grants employees in unionized and non-unionized workplaces the right to engage in concerted activities for the purpose of mutual aid or protection.  Employers are prohibited under Section 8 … Continue Reading

Build-A-Bear website, social media and COPPA

Many brand owners use their websites to promote their goods and services, as well as to promote their brands. Brand owners also frequently use social media to promote their brands. Indeed, it’s common for a website to include links to social media platforms such as Twitter and Pinterest. But if your site is directed to children, linking your site to social media platforms could be problematic.

Any website directed to children is potentially subject to the Children’s Online Privacy Protection Act (COPPA), and the Federal Trade Commission’s (FTC) regulations. COPPA and its regulation impose restrictions on companies that operate … Continue Reading