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Socially Aware Blog

The Law and Business of Social Media

She Liked It. She Really, Really Liked It: Federal District Court Holds Facebook Fan Page Manager Doesn’t Own “Likes”

Posted in Litigation

A federal district court broke new social media law ground in August 2014 when it held in favor of the cable network Black Entertainment Television (BET) in a suit brought by the founder of an unofficial Facebook fan page for one of the network’s television shows. In holding that BET acted lawfully when it asked Facebook to transfer the fan-created page’s “likes” to a BET-sponsored page, the U.S. District Court for the Southern District of Florida established important precedent: The only individual who can possibly claim to own a “like” on a Facebook page is the individual user responsible for it.

Background

Insurance agent Stacey Mattocks was so devoted to the television series The Game that she created an unofficial Facebook fan page for the show in 2008. By the time BET acquired the rights to The Game from the CW Network in 2009, Mattocks’ fan page had garnered a huge following, and BET—reportedly having failed to attract similar support for the show’s official fan page—wanted to capitalize on the social media audience that Mattocks had amassed.

Thus began a series of negotiations between Mattocks and BET, with Mattocks at one point managing the page for the Viacom-owned cable channel for $30 an hour. During Mattocks’ tenure in that part-time position, BET provided her with exclusive content to post on the Facebook page and began displaying its trademark and logos on it. The page’s following grew from two million to more than six million fans.

At this point, in early 2011, Mattocks and BET entered into a letter agreement granting BET administrative access to the Facebook page and the right to post content on it in exchange for the network’s promise not to change Mattocks’ administrative rights to the page. But Mattocks broke the agreement in 2012 when, after refusing a reported $85,000 annual salary offer from BET, she cut off the network’s control of the Facebook page and informed BET that she would maintain that restriction until the parties reached “an amicable and mutually beneficial resolution” concerning her employment.

BET reacted to being cut off by asking Facebook to “migrate” the page’s fans to a BET-sponsored page. After determining that the BET-sponsored page officially represented The Game’s brand owner, Facebook complied. Twitter also complied with BET’s separate request to disable The Game Twitter account that Mattocks maintained.

Mattocks filed suit in the U.S. District Court for the Southern District of Florida, alleging that BET tortiously interfered with Mattocks’ contractual relationships with Facebook and Twitter; breached its letter agreement with Mattocks; breached a duty of good faith and fair dealing with Mattocks; and converted a business interest that Mattocks had in the page. In late August 2014, the court held that BET was entitled to summary judgment on all of Mattocks’ claims.

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Status Updates

Posted in Status Updates
  • School discipline. The California legislature has passed a law that, if signed by Gov. Jerry Brown (or not vetoed by him before the end of September), would significantly expand privacy protections for students from kindergarten through high school. In particular, among other things, the law would limit education technology companies used by K-12 schools from knowingly engaging in targeted advertising to students or their parents and guardians; using certain student-related information to create a profile regarding a K-12 student; or selling or otherwise disclosing such student-related information. Will other states follow California’s lead?
  • Taxi wars. The upstart P2P ride-sharing service Uber and its allies – including the D.C.-based trade group the Internet Association – have begun a public relations campaign to “brand” traditional taxicabs in a negative light and to enhance the public image of ride-sharing apps. Their online campaign, known as “Taxi Facts,” refers to “Big Taxi” as if it were “Big Oil” or “Big Steel,” and states the public deserves to know the truth about the industry. Not to be outdone, the traditional taxi industry has launched a campaign that refers to the new entrants as simply “unregulated taxicabs.”
  • This Bud’s for you. Anheuser-Busch and Facebook have teamed up on a new promotion in which people will be able to go onto the social network and buy their friends beers for their birthdays, to be redeemed at a nearby bar or restaurant. The giver simply enters credit card information, and the recipient redeems an online voucher – as long as he or she is of legal age to drink. “The program was born of A-B’s desire to remain relevant with millennial consumers of legal drinking age – and strengthen our position as the perfect beer for connecting with friends around any occasion,” said Anheuser-Busch’s VP of consumer connections.

Status Updates

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  • Disappearing ink. Facebook is testing, for a small group of users, a feature that will permit a user to schedule a post for automatic deletion after a specified period of time. It seems that the period can range from an hour to seven days, according to people who have seen it. It is worth noting, though, that these posts can take up to 90 days to vanish from Facebook’s servers permanently.
  • Feel free to Yelp. If you have a problem with your plumber or your car rental in California, go ahead and complain online. California Gov. Jerry Brown just signed a new bill that prohibits businesses in that state from using contracts that prohibit consumers from writing negative online reviews. Some businesses include these prohibitions, known as non-disparagement clauses, in the sometimes lengthy terms and conditions that they impose on their customers. These clauses will now be illegal in most cases in California.
  • Picture this. Just because a photo appears on a social media site doesn’t mean that it is free to use, as Agence France-Presse and Getty Images found out recently when a federal court upheld a damages award against them for infringing the copyright in photos of the Haitian earthquake that had been posted on Twitter.   The court had previously held that, although the photographer had given Twitter a license to display his photos by uploading them, he didn’t give AFP or Getty the right to use them.  In the recent ruling, the court declined to set aside the jury’s $1.5 million damages award against the defendants.

Status Updates

Posted in Status Updates
  • In-tweet purchases. Twitter is testing the ability for its users to make purchases directly from tweets. The popular social network is working with a number of sellers, nonprofits and artists—as well as a small handful of social shopping and e-commerce platforms—to test “in-tweet purchases,” which will enable users to hit the “Buy” button straight from a tweet and compete a purchase in a few taps. This new functionality is only available to a small percentage of Twitter users for now, but availability is expected to broaden over time.
  • What’s the password? Back in 2012, we reported on then-new section 980 of the California Labor Code, which restricts employer access to “personal social media” (including usernames and passwords) of employees and applicants for employment. SFGate reports that, regardless of section 980, many state law enforcement agencies still require the disclosure of social media passwords, taking the position that the law only applies to private employers. Some California lawmakers are trying to close this apparent loophole through new legislation.
  • Get me one of those Trapper Keepers! It’s that time of year again, when kids head back to school and parents head to the stores for school clothes, school supplies, and much more. The National Retail Federation estimates that spending on back-to-school shopping will reach nearly $75 billion this year—and according to Crowdtap, a remarkable 64 percent of shoppers say that social media will play a role in their decisions on what to buy, with nearly 40 percent of those shoppers looking to Pinterest for deals and discounts.

Status Updates

Posted in Status Updates
  • Lawsuit panned by Court. The popular ratings app Yelp has been cleared by a federal appeals court of allegations in a class action lawsuit that the company extorted advertising dollars from businesses by threatening to remove positive user reviews or to highlight negative ones. The U.S. Court of Appeals for the 9th Circuit, affirming a District Court ruling, found that the plaintiffs failed to present sufficient evidence that any such coercion had occurred. Yelp says it has never altered a business review for money. The appeals court said that, in any case, the conduct alleged by plaintiffs amounted only to “hard bargaining,” not to extortion under federal law.
  • Shuttered images. Not long ago, Twitpic was the best-established third-party image-sharing service on Twitter. But Twitpic just announced that it is shutting down in the wake of a drawn-out trademark battle with Twitter. Twitpic’s founder said that Twitter threatened to cut off Twitpic’s access to its application programming interface, or API, if Twitpic did not abandon its trademark. The API involves the software tools that allow developers to tap into Twitter’s platform. Twitter responded that while Twitpic could use that name, “we have to protect our brand, and that includes trademarks tied to the brand.”
  • Drinking and posting don’t mix. In St. Joseph, Missouri, the local police have informed bar owners that, under state law, not only are they prohibited from sponsoring “all-you-can-drink” specials, but they cannot advertise on social media the prices associated with drink specials. The police take the position that the applicable state law, which reportedly restricts the advertising via traditional media of the exact prices of drink specials, applies to social media as well. The bar owners have objected, and the St. Joseph city attorney is seeking clarification from the state as to the scope of the statute.

Status Updates

Posted in Status Updates
  • We can work it out. Actress Katherine Heigl and the Duane Reade chain of drugstores have settled a $6 million federal suit filed by Heigl this past April in the U.S. District Court for the Southern District of New York. The suit centered on Duane Reade’s March 2014 tweet, “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore,” which linked to a paparazzi photo of Heigl carrying a Duane Reade shopping bag. The actress had alleged a violation of Section 43(a) of the Lanham Act, which prohibits false advertising, and of Section 50 of the New York Civil Rights Law, which prohibits the use for advertising or trade of a living person’s name, portrait, or picture without having first obtained that person’s written consent. As part of the settlement, Duane Reade has reportedly agreed to make a contribution to the Jason Debus Heigl Foundation.
  • With a little help from my friends. Facebook is reportedly testing a new mobile application feature that permits users to search by keyword through old posts from their friends. This innovation—much like the search functionality in cloud-based mobile mail applications—could make it easier for people to revisit otherwise difficult-to-find content, content that may have been “pushed off the page” in light of the chronological structure of social media news feeds.
  • All together now. What if hundreds of thousands of people all agreed to tweet at the same time? It happens! Although countless folks flock to social media sites on or around New Year’s Eve, according to Twitter’s Senior Director of Site Reliability Engineering, most users in Japan “tweet-in the new year” precisely at midnight local time—for example, take January 1, 2012, when Twitter “ground to a halt” as users in Japan tweeted over 16,000 times per second. Wired provides an interesting take on Twitter’s “stress testing” framework, aimed at handling incredibly high-volume traffic like this.

Status Updates

Posted in Status Updates
  • Blind spots. Self-driving cars are an excellent example of innovation, and the ones with Google technology have already traveled more than 700,000 miles. But what if a self-driving car doesn’t “see” a new traffic light or a previously nonexistent traffic sign? This could result in traffic citations, or worse. But Google says it’s taking steps towards eliminating this type of problem and that the future of self-driving cars is essentially unlimited.
  • Getting personal. As the name suggests, Michigan’s Video Rental Privacy Act limits the ability of companies to disclose information regarding customers’ video rental activities. But does the law cover magazines as well as videos? In a case filed by a consumer who alleged that a magazine company had improperly disclosed her personal information, along with information about the magazines to which she subscribed, the U.S. District Court for the Eastern District of Michigan recently held that the law does in fact apply to magazines. The court noted that the statute is directed to companies “engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings,” and that magazines constitute “other written materials.”
  • Geotargeting crime. In a new effort to use technology to foil credit-card fraud, a company called BillGuard is testing a system that would monitor the precise whereabouts of mobile devices to detect possible payment issues. The tech firm is tracking mobile-phone locations in an attempt to stay one step ahead of fraudsters. Because smartphones are almost always near their owners, the technology would register and flag those occasions when a phone is not near the owner’s credit card. The technology would only be used with the consumer’s consent.

Status Updates

Posted in Status Updates
  • 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

Posted in Status Updates
  • 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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