Ninth Circuit Reverses Social Media Gag Order

Currently, in the midst of a jury trial in U.S. federal court, the San Diego Comic Convention (SDCC) has had a bumpy ride in its trademark suit in the Southern District of California against Dan Farr Productions and its co-founders for their use of the name Salt Lake Comic Con. On October 26, the Ninth Circuit Court of Appeals reversed the district court’s “gag order,” which essentially prevented the defendants from posting about the case on any social media platform. Continue reading

Who is responsible for fan sites?

The Advocate General to the Court of Justice of the European Union (CJEU) Yves Bot caused a sensation with his unexpected opinion concerning the admissibility of social media fanpages under EU data protection law. According to the opinion of Mr. Bot, the operator of a social media fanpage is “jointly responsible for the processing and collection of personal data together with” the social media operator.

Further, the operator of a fanpage of a social network is deemed to be a controller “with regard to the phase of processing of personal data consisting in the collection of data on the persons visiting this site by this social network with a view to the production of visitor statistics relating to this site.” Continue reading

Pepe the Frog: A Case Study On When Copyrightable Content Takes On New Meaning

After making headlines in the 2016 U.S. presidential election, Pepe the Frog is back in the news again. This time, for the copyright enforcement efforts that Pepe’s creator is pursuing against unauthorized uses of the character by certain social media personalities and social media forums. Continue reading

Celebrity Endorsements, Cryptocurrencies, and Initial Coin Offerings

Our readers may recall that 2017 brought warning letters from the U.S. Federal Trade Commission to celebrities who had posted some photos on Instagram and the FTC has recently taken action regarding some undisclosed “material connections.”  A post on our sister blog, Regulation Tomorrow, describes the U.S. Securities & Exchange Commission’s recent warnings about celebrity endorsements of cryptocurrency and “initial coin offerings” and contrasts the SEC and FTC guidance and regulatory scope:

https://www.regulationtomorrow.com/us/celebrity-endorsements-cryptocurrencies-and-initial-coin-offerings/

Entering a new age of virtual reality

Experiencing virtual reality

The line between the digital world and the physical world is becoming increasingly blurred as we enter an era of virtual reality (VR).  VR can be defined as a “computer technology that uses virtual reality headsets…to generate realistic images, sounds and other sensations that simulate a user’s physical presence in a virtual or imaginary environment.”  In other words, VR uses computers to create a virtual environment that feels as close to reality as possible.

VR will have a significant impact on social media. Instead of communicating through texts, pictures and videos, VR technology will allow two or more people to feel as though they are in the same room together even though each person is in the comfort of their own home, using their own VR system.  Companies are already introducing social VR apps that allow users to communicate with each other through the use of avatars in a 3D environment. Continue reading

The Computer Fraud and Abuse Act: Considerations for Employers

Although the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030) is a federal statute that primarily protects against unauthorized computer access such as hacking, it can also impact employers in the realm of social media.  Originally enacted in 1984, CFAA makes it illegal to access knowingly or intentionally a “protected computer” without authorization or in excess of authorized access. Protected computers are defined broadly to include all computers that are used in or affect interstate commerce, and thus include most employer-owned computer systems.  Violations of CFAA may result in criminal penalties, and CFAA also permits individuals (and employers) to bring a civil action for damages or injunctive relief.  Employees rarely sue their employers under CFAA, but employers should nonetheless consider CFAA in formulating their social media policies and determining how they will regulate employee use of social media. Continue reading

A Love and Hate Relationship With Social Media

As we have previously written, the Pew Research Center found in 2016 that 62% of American adults consumed news on social media to some extent.

In September of 2017, the Pew Center updated its research, finding that, in 2017, about 67% or two-thirds of American adults are reporting getting “at least some of their news on social media,” a 5% increase from last year.

According to the research, this 5% growth was driven by more substantial increases among certain demographic groups. The research shows that 55% of American adults over 50 now consume news on social media sites, up from 45% in 2016. The research also reports that 74% of non-white Americans get news on social media sites in 2017, up from 64% in 2016. Last, there was an increase among those with less than a bachelor’s degree getting news from social media, to 69%, compared to 60% previously.

Despite all the headlines and studies on social media’s role in spreading fake news and its influence on public opinion, the majority of the public does not seem to plan to stop reading news on social media any time soon.  However, some optimistic leaders of the traditional news media see fake news as an opportunity to highlight the integrity of mainstream media. Continue reading

Social Media Evidence and Pay-Per-View TV

We have previously written about social media posts and advertisements being used as evidence in a variety of legal cases (most recently, a post relating to emojis).  A federal court in Pennsylvania recently used two social media advertisements—from a source the court could not identify—as evidence to support a finding of “willfulness” and to award 33% in enhanced damages.  (J&J Sports Productions, Inc. v. Ramsey, Civ. No. 17-1942 (E.D. Pa. Sept. 27, 2017) (2017 WL 4287200).) Continue reading

Court Looks to Social Media for Evidence of Trademark Infringement

In April 2017, based on some key social media evidence, the Central District Court of California decided UL LLC v. Space Chariot Inc., 2017 WL 1423706 (C.D. Cal. Apr. 20, 2017).  The court held on summary judgment that Space Chariot had infringed and counterfeited UL’s trademark, and awarded one million dollars in statutory damages.  UL, a holder of various safety certification marks, complained that Space Chariot, a manufacturer of “hoverboard” toys, had violated UL’s trademark rights by displaying UL’s safety certification marks on its hoverboards without permission.  The court summarized the issues: “The gravamen of UL’s complaint is that [the defendants] are using UL marks on various websites to falsely represent that Space Chariot’s goods—namely, hoverboards—have been certified by UL.”  Continue reading

Constructive dismissal or scorned husband? A closer look at Niland v Ntabeni NO and others

In a digital age where there are billions of active social media users globally it is conceivable that employees engage in activities and posts on media platforms, that may result in their dismissal. However, an employee’s social media posts can also be scrutinised outside of the misconduct space. In Nilan v Nthabeni (2017) 5 BLLR 521(LC), the South African court considered an employee’s social media post to decide whether the employee’s resignation was due to his desire to work for a competitor or to his wife having an affair with his employer. Continue reading

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