Social media profiles and postings by potential jurors can provide litigation counsel with substantial information about these individuals, including their likes, dislikes, and views on various issues and potential biases. A March 25, 2016 federal trial court ruling, however, led both parties to agree to forego these searches.… Continue Reading
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
In November 2013, Hanginout, Inc. (“Hanginout”) filed a lawsuit against Google Inc. (“Google”) alleging, among other things, that Google had infringed on Hanginout’s HANGINOUT mark.
Hanginout, a Virginia based social media company, uses its HANGINOUT mark for its interactive video response platform, which enables its users to create, promote, and sell their own brands by engaging directly with potential customers via pre-recorded video messages and/or video profiles. Google alleged that by 2009, it had already developed its internal version of what would become its HANGOUTS product. Google made its HANGOUTS product accessible to the public as part of its Google+ … Continue Reading
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
It’s been a full year since we launched the Social Media Law blog, and we thought it was a good time to take a moment to review:
- General Counsel use of social media continues to grow at an impressive rate
- Our Social Media Law blog has had visitors from 15 countries around the world
- The two most popular topics during 2013 for our postings? Facebook and defamation
Thanks to Ian Mattingly, we have an infograph to show you a review of 2013 from the point of view of our Social Media Law blog:… Continue Reading
Twitter, Facebook, YouTube, Instagram, Pinterest, LinkedIn, Google+,Tumblr, Slideshare…
The catalogue of popular social networking sites continues to grow as more and more consumers – both individual and corporate – sign-up by the millions.
But how can social media be used to bolster M&A?
In addition to the fairly obvious answer that social media can be used as an effective promotional and marketing tool, as noted in Part 2 of our series on social media, technology-driven analytics are quickly becoming a hallmark of companies’ M&A deal-making processes insofar as they facilitate pattern recognition and trend analysis. While this benefit is not … Continue Reading
Part 1 of our series on social media looked at how new technologies have started infiltrating the M&A landscape. But the question we aim to answer here is: to what end?
A recent article in the Wall Street Journal considered just that, noting that new technologies – and specifically data analytic technologies – can be used at various stages throughout the M&A lifecycle as a means of bolstering deal analysis and business forecasting.
While their processes can take many forms, data analytics effectively afford companies an advanced means of aggregating, synthesizing and modeling complex information with a view to revealing … Continue Reading
Earlier this year, the MIT Sloan Management Review published a research report summarizing the findings of its global executive study on social business. The study canvassed 2,545 respondents from 25 industries and 99 countries, all of whom were involved in corporate development decisions at their respective organizations. The aim of the study was to determine how new technologies have taken hold, where such technologies are going, and how such technologies may impact M&A in the coming years.
In an interview for the report, Gerald Kane, professor at the Carroll School of Management at Boston College, had the following to say … Continue Reading
Wearable computing devices, such as Google Glass (i.e., glasses integrated with a computing device), are expected to explode in popularity. Currently, wearable computing devices have generally limited social media application, but that may soon change.
In October 2013, Google was granted a US patent that highlights several possible social media applications for wearable devices, such as Google Glass. The innovation described may enable wearable devices to recognize known hand gestures and carry out particular actions in response. For example, making a symbolic heart shaped hand gesture around a real world object may trigger the “like” action commonly used in … Continue Reading
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
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, Forbes.com, dated May 16, 2012.
While directors are … Continue Reading
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
A court in the Eastern District of Texas recently held that two companies were “integrated employers” under the Family Medical Leave Act, in part, because the two companies shared a Facebook page. Dooling v. Bank of the West, No. 4:11-cv-00576 (E.D. Tex. July 17, 2013) (Bush, Mag. J.).
This conclusion allowed the plaintiff to establish her status as an eligible employee under the FMLA because both companies combined had more than 50 employees.
Our readers may be aware that the concepts of joint employer, integrated employer, co-employer or dual employer can arise in other areas. In the workers’ compensation … Continue Reading
Every day, hundreds of millions of people use social media to share their thoughts about everything that is happening around them. The most popular social media sites do not have simple ways to search for and organize content, so users turned to the hashtag to solve the problem. Hashtags are words or phrases prefixed with the hash sign (#) and provide a means of grouping messages together. When you click on a hashtag (e.g. #socialmedia), you can see what other people are saying about that particular topic. When a hashtag becomes extremely popular, it can “trend” and attract more individual … Continue Reading
Title II of the Digital Millennium Copyright Act (DMCA) provides a safe harbor for online service providers that allow users to self-post content. For companies with Web 2.0 enabled sites, 17 U.S.C. § 512(c) limits liability “for infringement of copyright by reason of the storage at the direction of a user.” But this safe harbor provision only applies where the provider acts to remove copyrighted material from its site upon being informed of it. This post discusses the DMCA and its implementation.
The DMCA limits liability to service providers even if they have actual knowledge of infringing activity. But copyright … 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
In a recent defamation case where the defendant sought anti-SLAPP protection related to internet forum posts about the plaintiffs, a federal district court recognized that social-media speech is no different from “traditional” speech. See Piping Rock Partners, Inc. v. David Lerner Assocs., Inc., No. C 12-04634 SI (N.D. Cal. May 17, 2013) (Illston, J.).
“SLAPP” is an acronym for Strategic Lawsuits Against Public Participation, defined in Black’s Law Dictionary (9th ed.) as “a suit brought by a developer, corporate executive, or elected official to stifle those who protest against some type of high-dollar initiative or who take an adverse … 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
On April 18, 2013, a federal district court judge again granted summary judgment in favor of YouTube in a copyright infringement lawsuit originally filed by Viacom, Paramount Pictures, and others in 2007. Viacom Int’l Inc. v. YouTube, Inc., No 1:07-cv-02103-LLS (S.D.N.Y. Apr. 18, 2013).
The plaintiffs had claimed that YouTube had infringed their copyrighted movies, television shows, etc. YouTube defended its actions by stating that the federal copyright law’s “safe harbor” applied because YouTube was merely acting as a service provider, it had no knowledge of infringing materials, and, when informed precisely of infringing materials, it promptly removed them.… Continue Reading
The highly respected Pew Center recently released its demographic data on social media usage. The data shows that regardless of age, race, sex, education, or income, well over half of the adults in the United States who use the internet, use social media. It is therefore reasonable that employers would formally address their expectations of employees’ social media use through a social media policy. Unfortunately, employer regulation of that use may chill the exercise of employees’ Section 7 rights in violation of the National Labor Relations Act (“NLRA”). Indeed, the National Labor Relations Board (“NLRB”) has approved few employer social … Continue Reading
On April 2, 2013, the Securities and Exchange Commission (the “SEC”) issued a report (the “Report”) indicating that companies can use social media, such as Facebook and Twitter, to announce key information in compliance with Regulation Fair Disclosure (“Regulation FD”), provided that investors have been informed of which social media outlet will be used to distribute the information.
Regulation FD provides that when a company (or a person acting on its behalf) selectively discloses material, nonpublic information to securities market professionals, or shareholders where it is reasonably foreseeable that the shareholders will trade on the basis of the information, the … Continue Reading
The Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et seq., projects the common law tort of real property trespass into the virtual realm of computers.
The CFAA has been successfully invoked for creation of fake user accounts on social network sites, email spam, email phishing, robotic data mining, and unauthorized hard-drive wiping. In effect, the CFAA prohibits the following:
- Unauthorized access or exceeding access of a government computer, financial institution computer, or computer designated as containing restricted data for national defense or foreign relations. § 1030(a)(1)-(a)(3).
- Unauthorized access or exceeding access of a protected computer with
As more companies recognize the brand value created and sustained through social media, there is greater interest in preserving social media accounts for company use and retaining the follower, member or “friend” base that has been built over time.
Simultaneously, an increasing number of employees believe that the social media accounts are not company property but are the personal property of the employee—which may not be the company’s view.
Recent cases such as PhoneDog LLC v. Noah Kravitz, No. C 11-03474 MEJ (N.D. Cal. Nov. 8, 2011, settlement announced Dec. 3, 2012) illustrate the importance of a social media … Continue Reading