The explosion of social media in the past decade has caused a major shift in the way we conduct our affairs. In particular, businesses have been required to adapt to new ways of communicating with their clients. At a rate of thousands of social media applications surfacing each month, and new legal issues surrounding the use of social media, it can feel overwhelming, especially for new businesses. … 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
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.
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
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
According to a January 22, 2014 ruling from the U.S. District Court for the Northern District of California, an incorrectly-chosen takedown notice may constitute a violation of the Digital Millennium Copyright Act (DMCA).
CrossFit and its DMCA takedown notice
In Crossfit, Inc. v. Alvies, plaintiff CrossFit, Inc. brought a trademark infringement action against Jenni Alvies for content posted on Alvies’ Facebook page and Blogspot blog. CrossFit, the company that created the very popular fitness training program and training certification program, currently owns multiple federal trademark registrations and applications for the mark CROSSFIT, including in connection with fitness training services, … 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
For an increasing number of startup ventures—particularly ventures with an integral online presence—protecting the intellectual property of the entity extends beyond agreements and legal filings. Protecting the assets of a venture may require a preemptive domain strategy against cybersquatters.
Cybersquatters are individuals who register domain names that are similar to a legitimate company’s domain and frequently use the similar domain name to profit from the goodwill of the company’s name or trademark.
Since the World Intellectual Property Organization (WIPO) began tracking cybersquatting disputes in 2000, the number of disputes has risen by 155%. WIPO Arbitration and Mediation Center, Total Number … Continue Reading
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
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
On July 16, 2013, the WIPO Arbitration and Mediation Center issued a panel opinion on an objection brought by Pinterest, Inc. (“Pinterest”), the San Francisco-based creator of the social media platform Pinterest, under the New gTLD Dispute Resolution Procedure.
Our readers are probably familiar with the common top-level domains, such as .com and .gov. In 2012, companies could apply for a new top-level domain that was not so restricted, and could be almost anything. These new “generic” top-level domains, or gTLDs, can be names, words in the dictionary, the applicant’s own trademarks, etc. The owner of a new … 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
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
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