Social media influencer advertising in Canada

Daniel Daniele (CA)By Daniel Daniele (CA) on Posted in General

Influencer marketing is increasing in popularity in Canada and can be an effective way to promote your brand. Influencers are online personalities that use social media to share their expertise and opinion about products or brands with their followers. In order to tap into the influencer’s network, businesses pay or otherwise compensate influencers to share content that features their products or brand. Influencer marketing comes in all shapes and sizes. For example, it includes a social media model promoting a certain brand of makeup or an athlete recommending a particular piece of workout gear. Recently, even the Government of Canada has utilized influencer marketing to disseminate information regarding the dangers of opioid usage among young people. Continue reading

New California laws may require review of social media policies

Phil Di Tullio (US)By Phil Di Tullio (US) on Posted in Employment and labor, Social media policies

The use of social media by employees is as fraught as it is widespread, and creates tremendous legal risk for the employer. Indeed, employers are wise to require adherence to a thorough policy regarding employee use of social media both inside and outside of work. The best policies will aim to sidestep potential legal landmines by preventing 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. Continue reading

Social media influencers and “scraping”

Susan Ross (US)By Susan Ross (US) on Posted in Copyright

On February 7, 2019, a federal trial court in California ruled in favor of a social media influencer’s copyright, trademark, interference with contract, and right of publicity class action lawsuit and denied the defendant’s motion to dismiss. As a result, the social media influencer can proceed with their claims that the defendant website copied social media photos and information but removed the links used by the influencer to monetize social media pages. (Batra v POPSUGAR, Inc., No. 18-cv-03752-HSG (N.D. Cal. Feb. 7, 2019) (2019 WL 482492). Continue reading

Banning critics from social media can constitute a First Amendment violation

Caleb Segrest (US)By Caleb Segrest (US) on Posted in General

The question of whether a public official may legally suppress dissent or criticism by banning dissenters from social media pages administered by the public official has recently entered the United States’ legal discourse. The Fourth U.S. Circuit Court of Appeals recently answered this question in Davison v. Randall, which was the first decision on the issue made at the federal appellate level. The implications of this decision could prove to be particularly significant, as President Trump is currently appealing a decision by the U.S. District Court for the Southern District of New York. In President Trump’s case, the district court held that the President engaged in viewpoint discrimination when he blocked individuals from his social media account because the individuals posted tweets that criticized the President or his policies. The Davison case is significant because the circumstances surrounding that case are similar in many ways to President Trump’s case, which is currently being appealed. Continue reading

Intermediary liability for internet services under NAFTA 2.0

Daniel Daniele (CA)By Daniel Daniele (CA) on Posted in General

USMCA provision

As organizations around the globe grapple with disinformation and fake news, the digital trade provisions in NAFTA’s successor may help assuage fears that internet content providers could be held responsible for such content. The US-Mexico-Canada Agreement (USMCA) contains important provisions dealing with the issues of free speech and digital trade. Continue reading

Inappropriate employee social media activity as a defense against employment discrimination claims

By on Posted in Employment and labor

It seems inevitable in today’s digital world that employers will sometimes discover that an employee has posted inappropriate statements or other inappropriate content on social media. The employer must then decide how to respond. Although the desired level of discipline will vary depending on the severity of the content, some statements are so egregious that they may call an employee’s character or fitness into question such that termination is the appropriate response. But if an employee is terminated for inappropriate conduct on social media, does the employer then open itself up to an additional risk of litigation? Continue reading

Online security breaches — A growing threat in the digital era

Daniel Daniele (CA)By Daniel Daniele (CA) on Posted in Security

One of the emerging threats in the digital era is online security breaches. Today, millions of people use social media platforms to post information about their lives online. In doing so, they often provide sensitive personal information to various platforms, including credit card information, personal preferences, and other information that is otherwise protected by various privacy legislation. A security breach from an unknown hacker can lead to millions of users’ accounts being compromised. In addition, many users now use one social media platform to host a variety of applications. In those circumstances, a security breach of the main platform could have a ripple effect on other accounts. Protecting against these types of security breaches is becoming increasingly important in the digital era. Continue reading

#trademarked?

Stephanie Schmidt (US)By Stephanie Schmidt (US) on Posted in Trademark

In August of 2018, the U.S. Trademark Trial and Appeal Board (TTAB), which decides cases certain trademark cases, refused rapper will.i.am’s attempt to register a hashtag as a trademark. Specifically, i.am.symbolic,llc (will.i.am’s company), attempted to register #WILLPOWER for a variety of apparel goods. The Trademark Examining Attorney refused his application because WILLPOWER WEAR  was already registered for “Hats; Jackets; Pants; Shirts; Shoes,” and i.am.symbolic appealed the decision to the TTAB. Continue reading

SEC vs. Elon Musk: Sometimes securities laws and social media posts don’t mix

Caleb Segrest (US)By Caleb Segrest (US) on Posted in General

When Elon Musk, the Chairman and Chief Executive Officer of Tesla, Inc. (“Tesla”), posted to social media on August 7, 2018, that he was considering taking Tesla private at $420 per share and had secured funding, he caused a ripple in the markets and gained the attention of the United States Securities and Exchange Commission (“SEC”). As a result of the statement, the SEC filed a lawsuit against Musk in the United States District Court for the Southern District of New York for allegedly violating Section 10(b) of the federal Securities Exchange Act of 1934 (the “Exchange Act”) and SEC Rule 10b-5 due to the allegedly false and misleading nature of Musk’s statements. Continue reading

Court-ordered social media disclosure

Susan Ross (US)By Susan Ross (US) on Posted in Social media policies

On August 30, 2018, a federal trial court in Texas ordered a defendant to include a disclaimer on certain social media posts as part of a preliminary injunction in a private litigation. (WorldVentures Marketing, LLC v. Rogers, 4:18-cv-00498 (E.D. Tex. Aug. 30, 2018) (2018 WL 4169049)). Continue reading

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