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Socially Aware Blog

The Law and Business of Social Media

Status Updates

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  • What’s not to like? The National Labor Relations Board has ruled that an employee’s Facebook “like” approving of another employee’s statements about their employer may constitute “concerted activity” under federal labor law. Two employees—a waitress and a cook—had been fired by a sports bar in Connecticut for complaining about the employer on Facebook, but the Board found on August 22 that their activity was protected under the National Labor Relations Act and the firings were unlawful.
  • Hello Siri, I need money. According to an article in The American Banker, banks should explore the potential of wearable computing devices. So-called smart watches and similar devices may prove useful for quick banking updates such as fraud alerts, balance checks, and funds transfers. They should also work well with voice-activated banking, enabling customers to ask a “personal assistant” like Apple’s Siri to answer questions or do simple banking tasks.
  • Likewise. A U.S. district judge in Florida has ruled against the creator of a Facebook fan page for a TV show in a dispute with BET, the producer of the show. Stacey Mattocks started the fan page and amassed millions of “likes,” but lost them after a falling out with BET that resulted in Facebook transferring the “likes” to BET’s own page for the show. Mattocks sued, arguing that BET converted her business interest in the “likes,” but the court held that the “likes” were not her property and could not be converted.  The judge said that “liking” a Facebook page is merely an individual user’s expression of enjoyment or approval and noted that a user can revoke a “like” at any time. Therefore, the court determined, to the extent a “like” belongs to anyone, it belongs to the user and not to the person who created the page.

Status Updates

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  • Breaking the ice. No one expected that people dumping buckets of ice water over their heads for charity would become the viral phenomenon that it has. One key technical secret to the success of the “ice bucket challenge” may have been Facebook’s adoption of “autoplay” videos. Autoplay videos, which are muted by default, attract attention to video content on the social network by moving without being prompted—a great way to help spread memes.
  • What happens next will shock you! “Clickbait”—provocative headlines that often lead to less-than-compelling content—has been around for quite a while, and some folks are striking back. Facebook is reportedly trying to fight clickbait by making user-friendly changes to its News Feed that promote more informative headlines. Meanwhile, Twitter user @SavedYouAClick retweets clickbait-y hyperlinks with a brief summary of the actual content. Spoiler alert, indeed.
  • TMI? Should psychotherapists have social media profiles that are open for patients’ perusal? Although therapists are often reluctant to share personal details with patients IRL (in real life), that may not be the case on social media… which can blur the boundaries between personal and professional. Meanwhile, ethical rules governing the online interaction between therapists and patients are just starting to take shape. The Washington Post offers an interesting take on the role of social media in the therapist/patient relationship.

UK’s Financial Services Regulator Issues Draft Guidance on Social Media – Should We Favourite* or #Fail?

Posted in Financial Institutions

On August 6, 2014, the UK’s financial services regulator, the Financial Conduct Authority (FCA), issued long-awaited draft guidance on the use of social media in financial promotions by regulated financial institutions.

But if financial services firms operating in the UK were hoping that this guidance would provide them with a clear framework to help jump-start their social media strategies, they will be disappointed. For one thing, the guidance is focused on financial promotions, so firms will need to continue to evaluate all of their social media activities carefully against existing FCA rules.

The proposed guidance – “GC14/6 Social media and customer communications: The FCA’s supervisory approach to financial promotions in social media” (“Guidance”) – is open for consultation until November 6, 2014. The FCA intends to continue discussions with the financial services sector during the consultation period. It has also set up the hashtag #smfca for those wishing to discuss the Guidance on Twitter.

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Status Updates

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  • Death in the digital age. When someone dies, his or her heirs or executor will have broad rights to access the deceased person’s letters, documents and other physical assets. Delaware has just become the first state to enact legislation giving heirs and executors the same rights to access a decedent’s digital assets – including his or her social media accounts – as they have to physical assets. The law only applies to people whose estates are located in Delaware and processed under Delaware law. Companies such as Google oppose laws of this type, asserting that they would lead to privacy violations.
  • The drive to curb Glass.  As Google Glass becomes more widely available, a number of states are considering legislation that would restrict drivers from using Glass and similar wearables on safety grounds. Even if ultimately adopted, however, would such laws be effective? As first reported in the Wall Street Journal, Prof. Adam Gershowitz of William & Mary Law School, in a recent research paper, argues that such laws would be “practically unenforceable.” Prof. Gershowitz notes that most of the contemplated bills only prohibit using Glass while driving, yet a police officer would have no real way of knowing whether a driver wearing Glass is in fact using the device. And while two bills under consideration would more broadly ban wearing Glass and other head-mounted wearables while behind the wheel, these bills overlook smart watches.  (We’ve covered in an earlier blog post the difficulty law enforcement agencies have had going after Glass-wearing drivers under laws adopted in the pre-wearables era; that post can be reviewed here.)
  • And while we’re on the topic of driving and technology . . . . Every new popular technology or app spawns new questions of etiquette and proper behavior. In the case of the fast-growing Uber service, lots of people who aren’t Uber drivers find themselves being accosted for a ride by potential passengers. In other words, people keep getting into strangers’ cars. Just make sure that the driver isn’t wearing Glass, okay?

Status Updates

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  • Beyond wearables. Wearable Internet devices like Google Glass have made an impact. Could “nearables” be the next new thing? That’s the name that some people are giving to sensors or “beacons” attached to ordinary objects or even to pets. Could a sticker attached to your dog track how active it has been and where it has gone?  What could happen if an Internet-active sticker were attached to a retail product at a store?
  • Changing timelines. Twitter has changed the way in which it prepares a person’s timeline of tweets. Now, the timeline will include not just tweets from users whom the person follows, but also tweets that Twitter, according to its algorithms, thinks are “popular or relevant” to the person. The idea, according to Twitter, is to make the timeline “even more relevant and interesting.”
  • Expanding the vine. The social app Vine has announced that its signature six-second videos can now be created with any high-end camera and software, not only with smartphones’ cameras.  This change is expected to attract more brands to the rapidly growing social network.

Status Updates

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  • Reality test. Facebook has begun to test a new feature that marks as “satire” material from satirical or comedic websites that appears in the guise of “fake news.” Some users, evidently unable to tell reality from clever fiction, requested that the social network tag these posts in this way.
  • Got to be a morning after.  A new social networking app called Sobrr promises users that their posts  will disappear within 24 hours. No more regrets, presumably, for those posts and friendships we may regret in the cold light of dawn. The idea was born in the aftermath of a bachelor party in Las Vegas, or so they say.
  • No kids allowed. There’s nothing like sharing your child’s achievements on social media, as far as many parents are concerned. But because of privacy concerns, or just because they want the decision to share to be their child’s, an increasing number of parents are choosing to keep their children’s accomplishments, and even their names, off the social networks.

Hot Off the Press: The August Issue of Our Socially Aware Newsletter Is Now Available

Posted in DMCA, FDA Regulations, Litigation, Privacy, Statistics, Supreme Court, Wearable Computers

The latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we examine the use of the Computer Fraud and Abuse Act to combat web scraping; we explore the launch of Google Glass in the UK and the issues it raises; we analyze the FDA’s latest attempt to provide direction for drug and device manufacturers concerning how and when they may use social media; we report on a recent case concerning whether service providers can avail themselves of certain DMCA safe harbors; we highlight the increasingly important role of social media services in proxy contests; we take a look at how the Supreme Court’s Aereo decision might impact other areas of technology; and we discuss the ongoing controversy regarding website accessibility under the ADA and California’s Unruh Act.

All this—plus a collection of thought-provoking statistics about social media and the World Cup…

Read our newsletter.

 

Status Updates

Posted in Status Updates
  • Better shop around. In connection with a new staff report, the Federal Trade Commission (FTC) examined 121 popular apps used to comparison shop, find online deals and pay with mobile devices; the FTC concluded that many of these apps failed, prior to download, to disclose important information to users, such as how the apps deal with payment-related disputes and how consumer data is collected, used and shared. The FTC urged developers of mobile shopping apps to be more transparent in how they deal with privacy, security and consumer protection issues. If your company is involved with apps designed to facilitate online shopping, you’ll definitely want to check out the report.
  • Social notworking.  Does social media undermine office productivity? Surprisingly, a study suggests that social media is responsible for a mere 5% of wasted time at work, well behind “water cooler talk” (14% of office time wasted), IT problems (12%) and – my favorite – pointless meetings (11%).
  • Chat or Tweet? For years, the direct message (DM) function within Twitter has been dormant – hardly used at all, much less for commercial purposes. Now, Twitter is trying to upgrade DM and position itself as a real-time chat option that will appeal to advertisers who want to communicate directly with consumers.

Status Updates

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  • Ahead of the law? In Hidalgo County, Texas, a former sheriff has been sued civilly over allegedly illegal campaign contributions. (He was also criminally convicted of money laundering.) At a civil deposition in the case, a lawyer for the plaintiff attempted to send live tweets from the deposition room. The judge ordered that the live tweets must stop — saying, “Our technology is far outpacing our ability to formulate rules.”
  • Fake book. A booking agent in the music industry is using California’s cyberbullying law as a basis for a lawsuit that he filed against a former colleague. The lawsuit claims that the former colleague defamed him by setting up a fake Twitter account in the plaintiff’s name that made him “appear to be foolish, inept and sexually perverted.” The defendant says that although the fake account exists, he had nothing to do with setting it up.
  • Principal objections. A New Jersey high school is revising its social media policy after settling a lawsuit brought by a student who was disciplined for tweeting disparaging remarks about the school’s principal. The student’s federal lawsuit claimed that the school violated her First Amendment rights when it punished her for “purely off-campus” speech.

Monkey in the Middle of Selfie Copyright Dispute

Posted in Copyright

The “selfie” is now so ubiquitous that the word is in the Oxford English Dictionary, you can use it in Scrabble and it has spawned a whole new lexicon. Selfies are no longer the preserve of teens and reality stars; you now have politicians, royalty and companies getting in on the act. Selfies can mean big business—indeed, it was recently announced that Kim Kardashian, the reality star and “queen of the selfie,” will publish a book of 352 of her favorite snaps next year at $19.95 a pop.

But unfortunately for our simian friends, it seems that selfies are simply not monkey business.

Monkey Selfie

In 2011, British wildlife photographer David J. Slater was in Indonesia taking photos of macaque monkeys. Some of the monkeys began playing with his digital camera and a female monkey managed to take a particularly excellent self-portrait, reproduced below.

The photo was published in various magazines and on websites around the world. It eventually was added to Wikimedia Commons, a collection of images that are free for public use.

Slater asked Wikimedia to remove the image or pay for its use; Wikimedia did neither. Last week it came to light that Wikimedia had denied a notice-and-takedown request regarding the photograph on the basis that there was no copyright in the monkey’s photo.

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